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                                                       Calendar No. 515
108th Congress                                                   Report
                                 SENATE
 2d Session                                                     108-264
======================================================================


 
   AMENDING THE INDIAN LAND CONSOLIDATION ACT TO IMPROVE PROVISIONS 
    RELATING TO PROBATE OF TRUST AND RESTRICTED LAND, AND FOR OTHER 
                                PURPOSES

                                _______
                                

                  May 13, 2004.--Ordered to be printed

                                _______
                                

   Mr. Campbell, from the Committee on Indian Affairs, submitted the 
                               following

                              R E P O R T

                         [To accompany S. 1721]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 1721) to amend the Indian Land Consolidation Act to 
improve provisions relating to probate of trust and restricted 
land, and for other purposes, having considered the same, 
reports favorably thereon with an amendment in the nature of a 
substitute and recommends that the bill, as amended, do pass.

                                Purpose

    The principal purpose of S. 1721 is to amend the Indian 
Land Consolidation Act, 25 U.S.C. 2201 et seq. (the ``ILCA''), 
to address the ever-worsening administrative and economic 
problems associated with the phenomenon of fractionated 
ownership of Indian lands. To this end, the amendment in the 
nature of a substitute (the ``Amendment'') would provide a new, 
uniform Federal probate code applicable to such lands and to 
Indian trust funds, as well as to make other mechanisms 
available to the Department of Interior, Indian tribes and 
individual owners of trust or restricted interests in land for 
consolidating ownership of highly fractionated parcels of land.

                               Background

    Federal policy towards Indian tribal governments has 
vacillated between two extremes. Since the founding days of the 
Republic, Federal policy has generally addressed tribal 
governments directly through a government-to-government 
relationship.\1\ At various times since 1789, however, the 
Federal government has treated tribal governments with varying 
degrees of apathy or antipathy, reflecting the relative 
strength of the United States vis-a-vis the tribes. Near the 
end of the Indian Wars of the 19th century came the allotment 
period, beginning in 1887 and continuing through 1934, when 
Congress enacted the Indian Reorganization Act, which formally 
ended the policy of allotment. The allotment period and the 
Federal policy associated with it is widely regarded as the 
most concerted Federal assault on tribal authority and the 
tribal land base. The cornerstone of this policy, the General 
Allotment Act of 1887 \2\ (GAA) or the ``Dawes Act'' as it came 
to be known, sought to end the communal nature of tribal 
ownership of reservation land by allotting it in parcels of 40 
to 160 acres to individual members of the tribes.
---------------------------------------------------------------------------
    \1\ This policy--for the United States to conduct its relations 
with Indian tribes on a government-to-government basis--was strongly 
re-affirmed by President Nixon in 1970: see ``Special Message to 
Congress on Indian Affairs,'' July 8, 1970.
    \2\ Act of February 8, 1887, 24 Stat. 388, codified at 25 U.S.C. 
Sec. Sec. 331 et seq.
---------------------------------------------------------------------------
    Before the allotment policy, Indian tribes bargained with 
the Federal government to cede vast portions of North America 
in exchange for Federal recognition of permanent tribal 
homelands or reservations. Through treaties, acts of Congress, 
or executive orders, these reservations established a 
geographic region set apart as areas where Indians, acting 
though their tribal governments, could ``make their own laws 
and be ruled by them.'' \3\
---------------------------------------------------------------------------
    \3\ Williams v. Lee, 358 U.S. 217, 220 (1959).
---------------------------------------------------------------------------
    Through allotment, the Federal government reduced 
collective tribal land ownership by patenting parcels of 
reservation land to individual Indians. In some cases, nearly 
all of a tribe's land base was allotted in this manner. At 
first, Indian allotments were subject to restraints on 
alienation for a twenty-five year period. During that period, 
tribal members were free to use their individual allotments, 
but they could not sell or encumber these lands. Federal law 
did not provide a means for the lease or even the testamentary 
devise of these interests. The Dawes Act provided only that 
these interests were to descend pursuant to state intestacy 
rules. Under these rules, each of a decedent's heirs received 
an equal undivided share of each interest in land owned by the 
decedent. It was not until 1910 that Congress provided that 
individuals could devise these interests.\4\ Because tribal 
members were unfamiliar with European-derived notions of land 
ownership and the complex systems of law and procedure that had 
been developed to support the transfer of ownership of property 
from one generation to the next through testamentary documents, 
few Indians wrote wills, making explicit devise of such 
interests an exception rather than the rule. Thus, in each 
successive generation smaller and smaller interests descended 
to the next generation. As these interests have grown smaller, 
it is not uncommon for an interest holder's connection with the 
land to become more abstract. As far back as 1934, Congressman 
Howard made the following observation:
---------------------------------------------------------------------------
    \4\ Act of June 25, 1910, 36 Stat. 856, codified at 25 U.S.C. 373.

          [O]ne heir may own minute fractional shares in 30 or 
        40 different allotments. The cost of leasing, 
        bookkeeping, and distributing the proceeds in many 
        cases far exceeds the total income. The Indians and the 
        Indian Service personnel are thus trapped in a 
        meaningless system of minute partition in which all 
        thought of the possible use of land to satisfy human 
        needs is lost in a mathematical haze of bookkeeping.\5\
---------------------------------------------------------------------------
    \5\ Representative Howard, 78 Cong.Rec. 11728 (1934), as quoted in 
Hodel v. Irving, 481 U.S. 704, 708 (1987).

    It is now seventy years after these remarks were made, and 
still interests in trust and restricted lands continue to 
descend by intestate succession and fractionate into ever-
smaller units of ownership.\6\ Even when partition in kind 
(i.e., dividing up a single parcel of land into several 
separate parcels, each going to a separate individual owner) is 
a legal option, it is rarely a practical alternative, 
especially where the ownership of a tract is held by dozens of 
individual Indians. As the Bureau of Indian Affairs (``BIA'') 
reported to the Senate Committee on Interior and Insular 
Affairs: ``As most of the allotments were of not more than 160 
acres of dry farming or grazing lands * * * it will readily be 
seen that it was not feasible to partition the land in kind.'' 
\7\ The ownership of some tracts have become so fractionated 
that while partition in kind may remain a theoretical solution, 
it is a practical impossibility.
---------------------------------------------------------------------------
    \6\ See, for example, Indian Programs, Profile of Land Ownership at 
12 Reservations, GAO, February 1992 (GAO/RCED-92-96BR). The Committee 
has shown considerable interest in the issue of fractionation over the 
past several years. In 1999, the Committee held a joint hearing with 
the House Resources Committee on S. 1586 (S.Hrg. 106-282) and in 2000 
passed extensive amendments to the ILCA, discussed below. See, also, 
the Committee report accompanying S. 1586, Rep. 106-361, July 26, 2000. 
In 108th Congress, the Committee held two hearings on S. 550, a bill 
covering the same subjects as S. 1721, one on May 7 and another on 
October 16, 2003.
    \7\ Committee Print, 98th Congress 2nd Sess. Indian Heirship Land 
and Survey of the 86th Congress, December 1, 1960, p. 3.
---------------------------------------------------------------------------
    Rather than characterizing the allotment policy as an 
assault on tribal authority, its proponents billed allotment as 
a means to ``elevate'' the status of each individual Indian, by 
replacing communal property with private property and 
supplanting tribal culture by assimilating individual Indians 
into mainstream culture. Whether stated or not, however, none 
of these objectives could be separated from allotment's 
fundamental purpose of reducing, then eliminating, the tribes' 
communal land-holdings, followed by the demise of tribal 
authority.\8\ In fact, allotments were frequently accompanied 
with declarations of ``surplus'' lands, which were then removed 
from tribal ownership. By the 1930's, the combined effect of 
the allotment of Indian lands and the direct government sale of 
reservation lands, the majority of lands reserved to tribes in 
19th century agreements with the United States had passed to 
non-Indian ownership.
---------------------------------------------------------------------------
    \8\ Royster, The Legacy of Allotment, 27 Ariz. St. L.J. 1 (1995).

          The majority of Indian lands passed from native 
        ownership under the allotment policy. Of the 
        approximately 156 million acres of Indian lands in 
        1881, less than 105 million remained by 1890, and 78 
        million by 1900. Indian land holdings were reduced from 
        138 million in 1887 to 48 million in 1934, a loss of 90 
        million acres. Of this, about 27 million acres, or two 
        thirds of the total land allotted, passed from Indian 
        allottees by sale between 1887 and 1934. An additional 
        60 million acres were either ceded outright or sold to 
        non-Indian homesteaders and corporations as ``surplus'' 
        lands.\9\
---------------------------------------------------------------------------
    \9\ See F. Cohen, Handbook of Federal Indian Law (1982 ed.) p. 138.

    Nevertheless, allotment was only one step towards 
eliminating or reducing the extent of tribal authority. Even 
when the allotment or diminishment of a reservation was 
undertaken with the intent of eventually terminating a tribe's 
authority over its land, the Supreme Court has been reluctant 
to conclude that the mere loss of a tribe's title to the land 
---------------------------------------------------------------------------
automatically divests jurisdiction:

          Although the Congresses that passed the surplus land 
        acts anticipated the imminent demise of the reservation 
        and, in fact, passed the acts partially to facilitate 
        the process, we have never been willing to extrapolate 
        from this expectation a specific congressional purpose 
        of diminishing reservations with the passage of every 
        surplus land act.\10\
---------------------------------------------------------------------------
    \10\Solem v. Bartlett, 465 U.S. 463, 469 (1984). Eight years before 
Justice Marshall expressed this view for a unanimous Supreme Court, 
then-Justice William Rehnquist reached a similar conclusion in Moe v. 
Confederated Salish and Kootenai Tribes, 425 U.S. 463 (1976). In Moe, 
the Court rejected the argument that the fee status of half of the land 
on the reservation worked a de facto diminishment of the reservation. 
Thus, although the General Allotment Act provided for state 
jurisdiction over allottees after their lands were patented to them in 
fee, this did not result in the end of the ``reservation-system.'' 
Justice Rehnquist reached this conclusion by relying on the Court's 
recent decision in Mattz v. Arnett, 412 U.S. 481 (1973), and ``the many 
complex intervening jurisdictional statutes directed at the reach of 
state laws [in which] Congress by its more modern legislation has 
evinced a clear intent to eschew such [a] ``checkerboard'' approach 
within an existing Indian reservation[.]''

    With the enactment of the Indian Reorganization Act of 1934 
(IRA),\11\ Congress repudiated the allotment policy and 
provided measures to reverse some of its most nefarious 
results. As one Federal appellate court explained:
---------------------------------------------------------------------------
    \11\ Act of June 18, 1934, 48 Stat. 984, codified at 25 U.S.C. 
Sec. Sec. 461 et seq.

          One of the purposes of the [Indian] Reorganization 
        Act was to put an end to the allotment system which had 
        resulted in a serious diminution of [the] Indian land 
        base and which, through the process of intestate 
        succession, had resulted in many Indians holding 
        uneconomic fractional interests of the original 
        allotments.\12\
---------------------------------------------------------------------------
    \12\ Stevens v. Commissioner of the Internal Revenue Service, 452 
F.2d 741 (9th Cir. 1971).

    The IRA provided some tools to reverse the effects of the 
allotment policy. First, the IRA formally ended the policy of 
allotting tribal lands,\13\ indefinitely extended the trust 
period on lands held in trust or restricted status,\14\ and 
ended the widespread practice of issuing so-called ``forced-fee 
patents.'' Second, it directed the Secretary to restore tribal 
lands that the government had declared to be ``surplus''.\15\ 
The IRA also authorized the Secretary to acquire lands and 
associated interests in lands.\16\
---------------------------------------------------------------------------
    \13\ 25 U.S.C. Sec. 461.
    \14\ 25 U.S.C. Sec. 462. Indefinitely extending the trust period 
prevented tracts of Indian lands from immediately passing out of trust. 
It did not, however, prevent land from passing out of trust when it is 
inherited by a non-Indian heir or when an allotment owner petitions the 
Secretary to terminate the trust status of an allotment or remove the 
Federal restrictions on alienation. With respect to Indian tribes 
organized pursuant to the IRA, however, allotted lands descend in trust 
or restricted status to the lineal descendants of a member of the 
tribe.
    \15\ 25 U.S.C. Sec. 463.
    \16\ 25 U.S.C. Sec. 465.
---------------------------------------------------------------------------
    In the late 1940's and the 1950's, Federal Indian policy 
changed yet again as Congress sought to terminate its 
relationship with certain specific Indian tribes. During this 
period, known as the ``termination era,'' the Federal 
government made few efforts to address the effects of the GAA. 
The government sought to find ways to eliminate Federal 
responsibility to tribes and their members rather than address 
the problems associated with former policies. On most 
reservations, Indian owners continued to inherit smaller and 
smaller shares of the undivided interests in each tract of 
allotted land. Also, interests were not necessarily inherited 
by residents, or even tribal members, of the reservation where 
an allotment was located. As locating dozens of individuals 
with undivided interests in a tract became increasingly 
difficult, the Department of Interior simply relied on its 
authority to lease unused lands on behalf of their owners while 
discouraging Indian owners from becoming active in the leasing, 
management, or development of their own lands.\17\
---------------------------------------------------------------------------
    \17\ The lease revenue from these lands is a source of the 
persistent popular misconception that Indians receive some form of 
Federal stipend, simply because of their status as Indians.
---------------------------------------------------------------------------
    In the 1960's, Congress embarked on yet another new course 
of Indian policy, abandoning the termination policy and 
beginning to lay the foundation for the policy of Indian 
selfdetermination.\18\ Fractionated ownership of reservation 
lands was seen as a problem that required immediate attention. 
From 1959 through 1961, House and Senate Committees undertook a 
significant effort to analyze the extent of land 
fractionation.\19\ With the assistance of the Interior 
Department, studies were commissioned to analyze the magnitude 
of the fractionation problem. These studies revealed that at 
least one-half of the 12 million allotted acres were held in 
fractionated ownership, with one-fourth of these lands owned by 
six or more heirs. Nevertheless, it was not until 1983 that 
Congress enacted a statute to address the fractionated 
ownership of Indian lands.
---------------------------------------------------------------------------
    \18\ See, F. Cohen, Handbook of Federal Indian Law (1982 ed.), pp. 
180-88.
    \19\ House Committee on Interior and Insular Affairs, Indian 
Heirship Land Study, 86th Cong. 2nd Sess. (Com. Print 1961) and Senate 
Committee on Interior and Insular Affairs, Indian Heirship Land Study, 
86th Cong. 2nd Sess. (Com. Print 1960-1961). Additional hearings were 
held in 1966, see Hearings on H.R. 11113 before the Subcommittee on 
Indian Affairs of the House Committee on Interior and Insular Affairs, 
98th Cong., 2nd Sess. (1966).
---------------------------------------------------------------------------

The Indian Land Consolidation Act of 1983

    In 1983, Congress enacted the Indian Land Consolidation 
Act, P.L. 97-459 (25 U.S.C. 2201 et seq.) which addressed land 
fractionation by--
          (1) Authorizing Indian tribes to establish land 
        consolidation plans (section 204);
          (2) Authorizing Indian tribes to acquire an entire 
        parcel of trust land with the consent of the majority 
        of the parcel's owners (section 205);
          (3) Authorizing the Secretary of Interior to approve 
        tribal probate codes, including provisions that limit 
        devise or descent to non-member Indians or non-Indians 
        (section 206); and
          (4) Providing that both devise and descent were 
        inapplicable to any fractional interest in trust or 
        restricted land if it was 2% of the total acreage in a 
        tract or smaller and it had not produced $100 in income 
        in the previous year; instead, such interests were to 
        escheat to the tribe (section 207).
    Although there was no disagreement about the need for 
legislation to address fractionation of Indian lands, certain 
provisions in the ILCA were immediately criticized. During the 
98th Congress, the Senate Select Committee on Indian Affairs 
held two hearings on the 1983 version of the 
Act.''18a Most participants directed their criticism 
at the escheat provision, section 207. In response to concerns 
that section 207 violated the 5th Amendment restriction on 
taking property without compensation, the Interior Department 
responded: ``[A] s a legal point, section 207 does not take 
property away from anybody who currently owns it. What it does 
is set criteria for whether the property can be further 
devised[.]''19a Accordingly, the amendments approved 
by Congress in 1984 continued to prevent either the devise or 
descent of many fractional interests.\20\ However, the 
amendment sought to ``loosen[] the restrictive language of the 
Act providing for the escheat of minor fractional interests in 
trust allotted lands or restricted lands.'' \21\ It did this by 
(1) permitting owners of escheatable interests to devise those 
interests to other owners of a parcel; (2) allowing some 
ineligible devisees to direct interests towards eligible 
individuals; and (3) assessing an interest's value using a 5 
year ``look-back'' at the revenue produced by an interest and 
allowing a beneficiary to rebut the presumption that an 
interest is without significant economic value . The 1984 
amendments also provided that the tribal probate codes adopted 
pursuant to the ILCA could take precedence over the escheat 
provisions of section 207.
---------------------------------------------------------------------------
    \18a\ Hearing Before the Select Committee on Indian Affairs, United 
States Senate, Amendments to the Indian Land Consolidation Act, S. 
Hrng. 98-390 (July 26, 1983) and Hearing Before the Select Committee on 
Indian Affairs, United States Senate, Amendments to the Indian Land 
Consolidation Act of 1983, S. Hrng. 98-1054 (July 31, 1984). See also, 
the Hearing Before the Select Committee on Indian Affairs, United 
States Senate, S. 2480-S. 2663 (June 21, 1984) and the document 
submitted for the record by Michael L. Lawson, Heirship: The Indian 
Amoeba.
    \19a\ S. Hrng. 98-390, p. 7. In fact, at the time Congress was 
considering amendments to the ILCA, the constitutionality of the Act 
was affirmed by a Federal district court in Irving v. Watt, Civ. 83-
5139 (D. S.D. Dec. 15, 1983), and was on appeal before the 8th Circuit. 
The 1984 amendments were signed into law on October 30, 1984. The 8th 
Circuit did not reverse the district court until March 29, 1985. The 
Supreme Court affirmed the 8th Circuit on May 18, 1987 in Hodel v. 
Irving, 481 U.S. 704 (1987).
    \20\ P.L. 98-608, October 30, 1984, 99 Stat. 3171.
    \21\ Sen. Rep. 98-632, p. 7.
---------------------------------------------------------------------------

                      Judicial Review of the ILCA

    The Supreme Court found the original version of the ILCA to 
be unconstitutional in the case of Irving v. Clark, 758 F.2d 
1260 (8th Cir. 1985), aff'd sub nom. Hodel v. Irving, 481 U.S. 
704 (1987). Each member of the Court agreed that the ILCA could 
not withstand constitutional scrutiny, but there was no 
consensus on the appropriate basis for this result. In a 
concurring opinion, Justice Stevens criticized both the 
majority opinion and Congress, charging that the Congress 
enacted section 207 of the ILCA ``abruptly with [a] lack of 
explanation.'' He then criticized the majority opinion for the 
``substantial gap [that] separates the claims that the Court 
allows the[] appellees to advance from the rationale that the 
Court ultimately finds persuasive.'' \22\
---------------------------------------------------------------------------
    \22\ Hodel at 719, Justices Stevens and White concurring.
---------------------------------------------------------------------------
    It is possible that each of Justice Stevens' criticisms can 
be traced to Congress, even those directed at the majority 
opinion. Justice Stevens noted a number of flaws in the 
consideration, drafting, and application of the original 
version of the Act: ``The House returned the bill to the 
Senate, which accepted the House addition without hearings and 
without any floor discussion of Sec. 207.'' In addition he 
noted: ``The text of the Act also does not explain why Congress 
omitted a grace period for consolidation of the fractional 
interests that were to escheat to the tribe pursuant to 
[section 207].''
    Justice Stevens also pointed out an apparent inconsistency 
between the Court's primary rationale for invalidating the 
statute and the case before the Court. According to the Court: 
``[The ILCA] effectively abolishes both descent and devise of 
these property interests even when the passing of the property 
to the heir might result in consolidation of property--as for 
instance when the heir already owns another undivided interest 
in the property.'' But the facts before the Court concerned 
interests that would further fractionate, and none of the 
plaintiffs owned pre-existing interests in the parcels they 
were to inherit.
    Like Justice Stevens, the Court's majority was concerned 
with the way in which the ILCA was drafted. For example, 
Congress assumed section 207 would only ``restrict the 
descendancy of some of these fractional interests if these 
interests are so small as to be financially meaningless.'' \23\ 
But the provision included in the ILCA relied exclusively on 
past income generation to assess an interest's value. As the 
Court noted, the ILCA's ``income generation test'' fell short 
of culling valuable from de minimis interests, and it is 
possible that a more accurate mechanism for determining the 
value of the 2% interests may have produced a different result 
before the Court.
---------------------------------------------------------------------------
    \23\ House Rep. No. 97-908 (Sept. 30, 1982), p. 11.
---------------------------------------------------------------------------
    Indeed, the Court was willing to concede that a number of 
factors weighed in favor of the ILCA. The Court noted that 
Congress enacted the law ``pursuant to its broad authority to 
regulate the descent and devise of Indian trust land [and]* * * 
as a means of ameliorating, over time, the extreme 
fractionation of certain Indian lands.'' Also, the Court noted 
that it was unlikely that the owners of the interest could 
point to ``investment backed expectations'' in property that 
had been held in trust for a century, and that had been 
``overwhelmingly acquired by gift, descent, or devise.'' The 
Court also noted an ``average reciprocity of advantage'' 
weighed ``weakly'' in favor of the statute. As the Court 
explained:

          All members do not own escheatable interests, nor do 
        all owners belong to the Tribe. Nevertheless, there is 
        substantial overlap between the two groups. The owners 
        of escheatable interests often benefit from the escheat 
        of others' fractional interests. Moreover, the whole 
        benefit gained is greater than the sum of the burdens 
        imposed since consolidated lands are more productive 
        than fractionated lands.\24\
---------------------------------------------------------------------------
    \24\ Hodel at 715-6.

    The absence of a more discerning test for determining the 
value of each interest created several difficult choices for 
the Irving Court (all of those choices, of course, obviated 
when the Court ruled ILCA section 207 unconstitutional). First, 
the Court would have to either devise a judicial test to 
replace ILCA's ``income generation test'' or somehow articulate 
limits on the use of the ILCA's income generation test. Second, 
even if the Court could fashion a method for determining each 
fractional interest's value, it would then have to set the 
standard for which interests were ``financially meaningless.'' 
Third, if the Court could resolve that difficult question, it 
would find itself in the classical ``slippery slope'' dilemma 
of incremental reasoning: that is, if the Court were to decide 
that interests worth $50 or less could escheat 
constitutionally, could it then provide a principled basis for 
deciding that interests worth, say, $51 could not? It is not 
surprising that the Court did not decide the case in a fashion 
that would have required it to struggle with these other 
issues, each of which fall within the province of the 
legislative rather than the judicial branch, especially in the 
field of Indian law.
    When the original version of the ILCA reached the Court in 
1987, Sec. 207 was analyzed by the Court from three very 
different perspectives. To three Justices, the statute violated 
the 5th Amendment because it was insufficiently solicitous of 
Indian rights.\30\ Four members of the Court found a 5th 
Amendment taking because the ``character of the Government 
regulation'' was ``extraordinary,'' raising concerns that 
upholding the statute would expand the government's authority 
over property rights.\31\ Finally, the statute was improperly 
constructed to please two members of the Court who may have 
been satisfied if the provision had simply conditioned 
retention of the interest upon ``performance of a modest 
statutory duty * * * within a reasonable period of time.'' \32\ 
Although the Irving decision may be fairly characterized as an 
invitation to Congress to ``go back to the drawing board'' and 
address the problem of fractionation in a constitutionally 
acceptable manner, unfortunately the Supreme Court expressed no 
view on whether Congress's efforts to do so in the 1984 
amendments to the ILCA resolved any of the Court's concerns.
---------------------------------------------------------------------------
    \30\ Hodel at 719, Justices Brennan, Marshall, and Blackmun 
concurring.
    \31\ Hodel, at 716. The Court observed that by enacting section 
207, Congress was ``acting pursuant to its broad authority to regulate 
the descent and devise of Indian trust lands'' (citing Jefferson v. 
Fink, 247 U.S. 288 (1918)). Irving, at 712. The Court concluded that, 
although the forced escheat mechanism in section 207 brings a benefit 
that ``is greater than the sum of the burdens imposed since 
consolidated lands are more productive than fractionated lands,'' the 
``extraordinary'' regulation of section 207 ``amounts to virtually the 
abrogation of the right to pass on * * * the small undivided interest * 
* * to one's heirs'' and ``effectively abolishes both descent and 
devise of these property interests even when the passing of the 
property might result in consolidation. * * *'' Id., at 716-17 
(emphasis added).
    \32\ Id. at 719, Justices Stevens and White concurring.
---------------------------------------------------------------------------
    In 1984, three years before the Irving decision and five 
months before the Eighth Circuit's decision in Irving v. Clark, 
Congress amended the escheat provision in ILCA by providing for 
a 5-year ``look-back'' period for determining value instead of 
one year (with a rebuttable presumption that the income would 
continue) and allowing a devise of the interest to co-owners in 
the same parcel. It is not surprising that the 98th Congress 
assumed that it could constitutionally limit the devise or 
descent of some interests in trust lands in this manner. In 
fact, the Irving decision itself was neither anticipated \33\ 
nor embraced by commentators, who viewed the case as something 
of an aberration.\34\ Also, Congress appears to have assumed--
accurately--that the courts would be sympathetic with the 
statute's objective.\35\ The Irving Court conceded: ``The 
fractionation problem on Indian reservations is extraordinary 
and may call for dramatic action to encourage consolidation.''
---------------------------------------------------------------------------
    \33\ See, Kornstein, Inheritance: A Constitutional Right? 36 
Rutgers L. Rev. 741 (1984).
    \34\ See, Chester, Essay: Is the Right to Devise Property 
Constitutionally Protected?--The Strange Case of Hodel v. Irving, 24 
Sw. U. L. Rev. 1195 (1995). Although Professor Chester characterizes 
Irving as ``strange'' and questions whether, for a number of reasons, 
it would be sufficiently robust to have a major impact on the law of 
inheritance in the long run, he acknowledges its potential as a 
significant change in the Court's jurisprudence in the area and 
cautions that ``what happens to this case as precedent over the next 
few years should be watched carefully.'' Id., at 1213.
    \35\ In light of the Supreme Court's decision in Northern Cheyenne 
Tribe v. Hollowbreast, 425 U.S. 649 (1976), Congress assumed that it 
had wide latitude to regulate the devise and descent of Indian property 
before it vested in a new owner. In Hollowbreast, the Supreme Court 
addressed mineral interests to allotments on the Northern Cheyenne 
Indian Reservation. A 1926 statute conferred the subsurface mineral 
estates to each allotment owner after fifty years. Before fifty years 
elapsed, a new law reserved the mineral rights for the benefit of the 
tribe. The Court upheld the statute and rejected the allottee claims 
that this constituted a taking of their vested property rights.
---------------------------------------------------------------------------
    Ten years after it refused to express an opinion on the 
1984 amendments to the ILCA, the Supreme Court considered 
whether these modest amendments rehabilitated the ILCA in 
Babbitt v. Youpee, 519 U.S. 234 (1997). With Justice White no 
longer on the Court, only Justice Stevens wrote that the 
amended statute could be constitutionally applied to Mr. 
Youpee's estate. The remainder of the Court found the ILCA as 
amended to be unconstitutional. Specifically, the Supreme Court 
considered the following amendments to the ILCA enacted in 
1984:

          [As] amended section 207 differs from the original in 
        three respects: it looks back five years instead of one 
        to determine the income produced from a small interest, 
        and creates a rebuttable presumption that this income 
        stream will continue; it permits devise of otherwise 
        escheatable interests to persons who already own an 
        interest in the same parcel; and it authorizes tribes 
        to develop their own codes governing the disposition of 
        fractional interests.\36\
---------------------------------------------------------------------------
    \36\ Babbitt v. Youpee, 519 U.S. 234 (1997).

    The Court noted that the Act still relied exclusively on 
the income generated by a parcel to assess its value, an 
approach to valuation that could allow valuable interests to 
escheat if they were not producing income. Most important, 
although the modified statute allowed an owner to devise his 
interest, he could only devise it to another ``owner of an 
undivided interest in such parcel of trust or restricted 
land.'' This did not go far enough to satisfy the standard 
established in Irving. As the Court explained: ``Congress'' 
creation of an ever-so-slight class of individuals equipped to 
receive fractional interests by devise [i.e. existing interest 
holders] does not suffice, under a fair reading of Irving, to 
rehabilitate the measure.'' Quoting from the 9th Circuit Court 
of Appeal's observation, Justice Ginsburg pointed out that the 
class of current owners ``is unlikely to contain any [of the 
testator's] lineal descendants.'' \37\ Finally, the United 
States did not assert that the establishment of tribal code 
provisions was relevant in Youpee. In light of Irving, the 
result in Youpee is not surprising. In fact, several years 
before Youpee even reached the Court, the Department of 
Interior was soliciting input from tribes and individual owners 
of trust and restricted land on how to address land 
fractionation issues.\38\
---------------------------------------------------------------------------
    \37\ Youpee at 733, quoting Youpee v. Babbitt, 67 F.3d 194, 199-200 
(9th Cir. 1995).
    \38\ Statement of Assistant Secretary for Indian Affairs Kevin 
Gover, Joint Hearing Before the United States Senate Committee on 
Indian Affairs and the House of Representatives Committee on Resources, 
Indian Land Consolidation Amendments; And to Permit Leasing of Oil and 
Gas Rights on Navajo Allotted Lands, Nov. 4, 1999, S. Hrng. 282, p. 83. 
(Describing a consultation process on land consolidation begun in 
1994.)
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ILCA and Treaty Rights

    A discussion of the principles drawn from the Supreme 
Court's opinions on the ILCA would not be complete without 
addressing the concurring opinion in Irving authored by Justice 
Brennan, and joined by Justices Marshall and Blackmun. In their 
concurring opinion, these Justices aligned themselves with the 
decision of the 8th Circuit Court of Appeals. While the Court 
of Appeals ruled that a 5th Amendment taking had occurred, they 
based this conclusion on the nature of the property at 
issue.\39\
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    \39\ By contrast, the Supreme Court's majority in Irving found a 
taking based on the nature of the government's action. According to the 
Court, ``the character of the Government regulation here is 
extraordinary[,] * * * [a] virtual abrogation of the right to pass on a 
certain type of property * * * to one's heirs,'' a right which had 
``been part of the Anglo-American legal system since feudal times.'' 
Id., at 716. Of course, allotments did not exist in feudal Europe, and 
with limited exceptions, these interests did not even exist in the 
United States for more than a century after its founding. Although 
looking to European antecedents as a means of understanding the rights 
attaching to interests in allotted Indian lands might be, therefore, 
fraught with hazards, the full measure of an individual's interest in 
an allotment cannot be ascertained without some reference to concepts 
of Anglo-American property for at least three reasons. First, the very 
notion of establishing allotments and the language employed to define 
these property interests originated in Western, rather than indigenous, 
culture. Second, these allotments were the result of negotiations 
between an Indian tribe and the United States. Therefore, Anglo-
American notions of property were the intellectual and cultural 
backdrop for one (but only one) of the two parties that negotiated the 
relevant agreement. In light of the longstanding principle that 
treaties are to be interpreted in favor of Indian tribes and their 
members, it follows a fortiorari that the holders of these rights 
possess whatever beneficial attributes may be gleaned from the Anglo-
American culture that chose to create and characterize them.
---------------------------------------------------------------------------
    The crux of Justice Brennan's three sentence concurring 
opinion consists of the following statement: ``largely for the 
reasons discussed by the [8th Circuit] Court of Appeals, I am 
of the view that the unique negotiations giving rise to the 
property rights and expectations at issue here make this case 
an unusual one.'' Specifically, the 8th Circuit decision 
referred to the treaty negotiations that led to the creation of 
the allotments at issue and concluded that the allottees 
bargained with the United States and ``obtain[ed] patents to 
protect allotments from future governmental interference,'' 
including right to devise their interest. Pointing to the 
Supreme Court's decision in Choate v. Trapp, 224 U.S. 665 
(1912), the 8th Circuit explained that treaty provisions can 
give rise to individual rights that may not be altered without 
just compensation. In Choate, the original allottees enjoyed an 
immunity from taxation that could not be altered by Congress 
without payment of just compensation.
    In the 8th Circuit Court of Appeals, the Irving plaintiffs 
claimed that the ILCA violated two interests protected by 
Choate: a promise that interests in allotted land would 
continue to descend through family lines without governmental 
interference and that state law would be used to determine the 
inheritance of allotments. The 8th Circuit interpreted treaty 
provisions as a Federal guarantee that ``lands allotted to 
individual Indians could not be taken from [the allottees or] 
their children [i.e. heirs or devisees].'' \40\ Thus, the panel 
of judges agreed that the ILCA ran afoul of Choate when it 
prevented either the devise or descent of an interest in 
allotted land. However, the 8th Circuit explicitly rejected the 
idea that heirs under state law enjoyed any vested rights under 
the treaty. The would-be heirs argued that the treaty 
guaranteed the exclusive use of state law of intestacy to 
determine the descent of interests in trust land. As the 8th 
Circuit pointed out, this theory would require courts to find a 
taking if the law authorized the testamentary devise of 
allotted land.\41\ Such a result would hinder Congressional 
authority ``to alter and condition rights that have not yet 
vested in individual Indians[].'' It would also elevate the 
rights of heirs above those of a living allotment owner. 
``[T]he existence of any vested rights in an allottee's heirs 
would mean that an Indian to whom land was allotted would have 
no power to dispose of that property by will.'' \42\
---------------------------------------------------------------------------
    \40\ Irving v. Clark, 758 F.2d 1260, 1264, aff'd on different 
grounds sub. nom. Hodel v. Irving, 481 U.S. 704 (1987).
    \41\ In fact, some of the plaintiffs in Irving could only assert 
claims under devise based on Federal laws enacted after the treaty.
    \42\ Irving v. Clark, 758 F.2d 1260, 1265 (1985).
---------------------------------------------------------------------------
    Although the Supreme Court decided Irving on different 
grounds, the continuing vitality of Choate is obvious; treaties 
give rise to interests and rights which may not be eliminated 
without the payment of compensation. Even though the 8th 
Circuit was solicitous of this principle, it would not accept 
an invitation to require the Federal government to compensate 
every would-be heir who was prevented from inheriting because 
of an adjustment in the rules governing the descent and devise 
of allotments. The majority in Irving v. Hodel agreed that 
Congress's ``broad authority to adjust the rules governing the 
descent and devise'' of this property\43\ would permit 
aggressive changes in the rules of devise and descent without 
effecting a compensable taking. According to the Irving Court, 
Congress could even go so far as ``abolishing the descent of 
such interests by rules of intestacy, thereby forcing the 
owners to formally designate an heir to prevent escheat to the 
Tribe.'' Id., at 717-18.
---------------------------------------------------------------------------
    \43\ Id., at 717.
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The Indian Land Consolidation Act Amendments of 2000 (P.L. 106-462)

    In 2000, the Congress adopted further amendments to ILCA--
P.L. 106-462, the Indian Land Consolidation Act Amendments of 
2000 (the ``2000 Amendments''). Section 102 of the 2000 
Amendments set forth the five-fold policy of the United States 
to--
          (1) prevent further fractionation of Indian trust 
        allotments;
          (2) consolidate fractional interests and their 
        ownership into usable parcels;
          (3) consolidate those interests in a manner that 
        enhances tribal sovereignty;
          (4) promote tribal self-sufficiency and self-
        determination; and
          (5) reverse the effects of the allotment policy on 
        Indian tribes.
    The 2000 Amendments brought a number of significant changes 
to ILCA that were calculated to implement the various aspects 
of this declared Federal policy. These changes include 
extensive revisions of ILCA section 206 (25 U.S.C. 2205) 
relating to tribal probate codes; a new uniform Indian probate 
code with provisions for the testamentary disposition and 
intestate succession of interests in trust and restricted 
Indian lands (ILCA section 207(a) and (b), 25 U.S.C. 2206(a) 
and (b)); a new pilot program for the voluntary acquisition of 
fractional interests as well as provisions for administering 
the interests acquired under that program (ILCA sections 213 
and 214, 25 U.S.C. 2212 and 2213); and provisions to facilitate 
land consolidating transactions between individual Indians and 
their tribes (ILCA section 217, 25 U.S.C. 2216). Thus, the 2000 
Amendments brought an assortment of different mechanisms to 
bear on the problem on Indian land fractionation, which had 
continued unabated since the 1984 amendments to ILCA.
    The probate code in the 2000 Amendments (see ILCA section 
207, 25 U.S.C. 2206) was also intended to have, over time, a 
consolidating effect on fractionated parcels of Indian land. 
The code, which has not yet gone into effect,\44\ establishes a 
scheme of intestate succession that has a much narrower range 
of potential individual heirs than is found in typical state 
codes of intestate succession, and makes the Indian tribe the 
``heir of last resort'' if there are no eligible individual 
heirs. Although the testamentary provisions of the probate code 
in the 2000 Amendments (ILCA section 207(a)) provide landowners 
of trust and restricted land with some latitude in terms of 
selecting from eligible devisees of their land, allowing the 
devise of a trust or restricted interest to any Indian person 
or to the Indian tribe, it still has significant limitations: a 
devise of an interest to a non-Indian (which might include the 
testator's own non-Indian children) creates only a life estate 
in the devisee, with the remainder going to heirs of the 1st or 
2nd degree if those heirs happen to be ``Indian'' as that term 
is defined in ILCA section 202(2) (25 U.S.C. 2201(2)).\45\ If 
the testator's heirs of the 1st or 2nd degree are non-Indian, 
they inherit the remainder interest only if they already own an 
undivided interest in the same parcel of land, failing which 
the remainder interest passes to the tribe.
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    \44\ Pursuant to ILCA section 207(g)(5), the probate provisions of 
the 2000 amendments do not affect the estate of any decedent who dies 
prior to the day which is 365 days after the date on which the 
Secretary makes a certification under section 207(g)(4). That 
certification has not yet been made.
    \45\ The 2000 Amendments would allow the devise of a trust or 
restricted interest to a testator's non-Indian heir of the 1st or 2nd 
degree or non-Indian collateral heir of the 1st or 2nd degree only if 
the testator has no Indian spouse, Indian lineal descendent, Indian 
heir of the 1st or 2nd degree or Indian collateral heir of the 1st or 
2nd degree. Therefore, if a testator happened to have, for instance, an 
Indian uncle or and Indian first cousin, he could not devise the 
interest to his own children if they were not Indian.
---------------------------------------------------------------------------
    Accordingly, under the 2000 Amendments, many Indian owners 
of trust or restricted interests in Indian lands would be 
unable to devise anything more than a life estate in those 
interests--or to have the interests pass by intestate 
succession--to their own children or grandchildren who were not 
Indian as defined in the ILCA. Not surprisingly, in the 
hearings in May and October of 2003 on S. 550, a bill that is, 
in essence, an earlier version of S. 1721, the Committee 
received statements from Indian landowners and tribal 
representatives expressing great concern over the limitations 
placed on landowners by the intestate and testamentary 
provisions of the 2000 Amendments, and indicating that some 
landowners have submitted, or were prepared to submit, 
applications for fee patents of their interests in order to 
avoid the limitations of the Federal probate code and assure 
their ability to devise the property to their children or other 
family members.\46\ This unfortunate result was never intended 
happen with the 2000 Amendments. To the contrary, the 2000 
Amendments were an effort to preserve the trust status of 
individual Indian lands, and to build on the Federal Indian 
policy reflected by the enactment of the Indian Reorganization 
Act of 1934, including the 1934 act's indefinite extension of 
the trust and restricted period on Indian lands and its 
repudiation of laws from an earlier period that facilitated the 
unilateral issuance of fee patents to owners of Indian trust 
land, even over their protest.\47\ Therefore, in addition to 
addressing the alarming rate of fractionation of Indian lands, 
the Amendment is intended to address the concerns of Indian 
landowners and their advocates over the impact that the probate 
code of the 2000 Amendments would have if it were to be 
certified.
---------------------------------------------------------------------------
    \46\ See, written testimony of Ben O'Neal, a trust land owner and 
member of the Business Council of the Eastern Shoshone Tribe of the 
Wind River Reservation, submitted for the record of the Committee's 
hearing on May 7, 2003, and written testimony of D. Fred Matt, 
Chairman, Confederated Tribes of the Salish and Kootenai Tribes of the 
Flathead Reservation, submitted for the record of the Committee's 
hearing on October 15, 2003.
    \47\ See, 25 U.S.C. 462 (extending the trust and restricted period) 
and 478-1 (making section 462 applicable to all tribes and all trust 
and restricted Indian lands). See, also, Sampson v. Andrus, 483 F. 
Supp. 240, 242 (D.C. S.D. 1980).
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                        The Need for Legislation

    Several decades after adopting a policy of breaking up 
Indian reservations through allotments and other means, 
Congress ended and formally repudiated this policy through the 
Indian Reorganization Act of 1934. Congress also sought to 
reverse the effects of the allotment era, although its efforts 
in this regard have achieved only limited success. While 
testimony before the Committee's hearing on S. 550 in May of 
2003 indicates that the Department's fractional interest 
acquisition pilot program in the BIA's Midwest Regional Office 
had succeeded, as of that time, in purchasing over 40,000 
fractional interests located on 3 reservations--and thereby 
forever avoiding any further fractionation of those interests 
over the course of future generations--the Department's witness 
also testified that the rate of fractionation of other 
interests has been so great that the same number of outstanding 
interests exist today on these 3 reservations as when the 
program first began 4 years ago.\48\ It is clear, then, that 
more aggressive measures are necessary in order to (1) slow the 
rate of fractionation; (2) consolidate fractionated interests; 
and (3) facilitate and improve the implementation of the 
Congressional policy of acquiring and consolidating fractional 
interests embodied and expressed in the 2000 Amendments.
---------------------------------------------------------------------------
    \48\ See, Testimony of Wayne Nordwall, Director, Western Region, 
Bureau of Indian Affairs, submitted for the record at the Committee's 
hearing on S. 550 held on May 7, 2003. Mr. Nordwall also testified at 
the Committee's hearing on October 15, 2003, and his written testimony 
submitted there indicates that the rate of fractionation may have even 
outstripped the Department's total acquisitions. This excerpt from his 
testimony submitted at the latter hearing, describing the same highly 
fractionated tract that was at issue in Hodel v. Irving, supra, also 
illustrates both the magnitude and the financial impact of the 
fractionation problem:

    Today, this tract produces $2000 in income annually and is valued 
at $22,000. It now has 505 owners but the common denominator used to 
compute fractional interests has grown to 220,670,049,600,000. If the 
tract were sold (assuming the 505 owners could agree) for its estimated 
$22,000 value, the smallest heir would now be entitled to $.00001824. 
The administrative cost of handing this tract in 2003 are estimated by 
the BIA at $42,800.
---------------------------------------------------------------------------
    Like the probate code in the 2000 amendments, the intestacy 
provisions of the Amendment's uniform probate code that would 
replace\49\ ILCA section 207(a) are intended to slow the rate 
of fractionation of individual Indian trust and restricted land 
over the course of time. The general rules of intestate 
succession in the Amendment would limit (1) the number of 
successive classes of potential individual heirs standing to 
inherit an interest before it would pass to the Indian tribe, 
and also (2) the eligibility for membership within each such 
class. The classes of individual heirs in the general rule 
(i.e., section 207(a)(2)(B)) are children and, by 
representation, grandchildren; great-grandchildren; parents; 
and, finally, siblings. To be eligible to inherit within these 
classes, a child, grandchild, great grandchild, etc., must 
qualify as an ``eligible heir,'' a term that the Amendment adds 
to ILCA's definition section, 25 U.S.C. 2201. The term 
``eligible heirs'' is defined to mean, for purposes of ILCA 
section 207 (25 U.S.C. 2206), any of a decedent's children, 
grandchildren, great grandchildren, parents, full siblings, and 
halfsiblings by blood who are (1) ``Indian'' as defined by the 
Amendment,\50\ (2) lineal descendants within two degrees of 
consanguinity of an Indian, or (3) owners of a trust or 
restricted interest in a parcel of land for purposes of 
inheriting another such. interest in the same parcel.\51\ These 
classes of individuals eligible to inherit by intestate 
succession under the Amendment are limited in comparison to 
those of typical state codes, which tend to reach out to remote 
collateral family relations to find an heir before property 
escheats to the State.\52\ See, for examples, A.R.S. Sec. 14-
2103 (Arizona), MT.ST. Sec. 72-2-113 (Montana), and Cal. Prob. 
Code App. Sec. Sec. 6401 and 6402 (California).
---------------------------------------------------------------------------
    \49\ As with the probate code in the 2000 amendments, the probate 
code in the Amendment would not affect the estate of any person who 
dies before the date that is one year after the Secretary certifies 
compliance with the notification requirements of section 8(a) of the 
Amendment.
    \50\ The Amendment defines Indian so as to include, inter alia, 
``any person who is a member of any Indian tribe, is eligible to become 
a member of any Indian Tribe, or is an owner (as of the date of 
enactment of the Indian Probate Reform Act of 2004) of a trust or 
restricted interest in land * * *.''
    \51\ The term ``eligible heirs'' determines who may inherit under 
the probate code by intestate succession. The term is not used to limit 
who may receive an interest in trust or restricted land or trust 
personalty by testamentary devise under the probate code.
    \52\ Use of the limiting term ``eligible heir'' in section 207(a) 
somewhat increases the probability that the tribe, as the ``heir of 
last resort'' under the Amendment's probate code, will inherit the 
interest where the decedent dies without a will, because only those 
individual family members within each successive statutory class of 
heirs who meet the definition of ``eligible heirs'' may inherit the 
trust or restricted interest. A child, grandchild, etc., of the 
decedent who does not qualify as an ``eligible heir'' cannot inherit a 
trust or restricted interest by intestate succession. On the other 
hand, the term is defined broadly enough to allow close family members 
of many decedents to inherit trust or restricted interests through 
intestate succession--and by maintaining the trust or restricted status 
of the interests, keep the interests within the reach of a probate code 
that, unlike state probate codes, will have a consolidating effect over 
the course of time, and keep those interests available for purchase by 
co-heirs or co-interest owners at probate under the amendments to ILCA 
section 207 or by the Secretary under the fractional interest 
acquisition program under ILCA section 213. See footnote 59.
---------------------------------------------------------------------------
    In addition, the uniform probate code in the Amendment has 
a special ``single heir rule'' \53\ applicable to small 
interests that are not passing under a valid will--i.e., any 
trust or restricted interest in land in the decedent's estate 
that represents less than 5% of the entire undivided ownership 
of the parcel of which it is a part.\54\ The single heir rule 
is intended to place a ``floor'' on fractionation insofar as it 
is the consequence of intestate succession and to provide 
owners of trust or restricted land with a strong incentive to 
write wills. The rule would reduce the number of classes of 
potential eligible heirs standing to inherit these small 
interests to just three--children, grandchildren, and great 
grandchildren--and only one person in each successive class, 
the oldest eligible heir, may inherit the interest. If there 
are no eligible heirs in any of the three classes, the interest 
passes to the Indian tribe with jurisdiction over the 
interest.\55\ It is important to note, however, that the 
Amendment would expressly allow the owners of trust and 
restricted interests to avoid the application of the single 
heir rule by disposing of the interest by executing a will.
---------------------------------------------------------------------------
    \53\ If enacted, the single heir rule would become ILCA section 
207(a)(2)(D).
    \54\ The interest to which this percentage applies is the interest 
held by the decedent at the time of his or her death and is to be 
determined based on ``the Secretary's records at the time of the 
heirship determination.'' This wording is intended to address problems 
of ownership calculation that might frequently arise in tracts that 
have hundreds, and in some instances thousands, of different owners. 
For example: if, unknown to a decedent's surviving family members, 
another co-owner of the parcel who was related to the decedent had 
predeceased her, and the decedent was an eligible heir of this other 
co-owner, it is possible that the Secretary's records may show that the 
decedent owned less than 5% of the parcel whereas in reality she owned 
slightly more than 5%. In such a case, a subsequent determination that 
the decedent may have owned somewhat more than the Secretary's records 
reflected at the time of the heirship determination would not undo the 
application of the single heir rule. Similar language is included in 
other provisions of S. 1721 that require ownership calculations--the 
partition section (new section 205(d)(2)(E)) and the purchase option at 
probate (new section 207(p)(5))--for similar reasons.
    \55\ The rule would allow the Indian tribe with jurisdiction over 
the interest to adopt a different rule of intestate succession 
applicable to interests of less than 5%, provided that the tribal rule 
does not allow intestate inheritance of such interests by more than one 
person. The tribe's rule should be set forth in a tribal ordinance, 
legislation or other appropriate enactment of the governing body of the 
tribe.
---------------------------------------------------------------------------
    While the intestate provisions of the Amendment are 
designed to limit the range of eligible heirs, the testamentary 
provisions of S. 1721 (i.e., the bill's amendment to ILCA 
section 207(b)) are written to provide owners of trust and 
restricted interests in land and trust personalty with a very 
wide range of testamentary options. Specifically, the landowner 
may devise such interests in trust status to his or her lineal 
descendants, to any other person who owns another trust or 
restricted interest in the same parcel, to the Indian tribe, or 
to any Indian, and may also devise the interest (1) as a life 
estate to any person or (2) as an unrestricted fee interest to 
any person who is not Indian (including the testator's non-
Indian lineal descendants).
    As the Court states in Irving:

          [E]ncouraging the consolidation of Indian lands is a 
        public purpose of high order. The fractionation problem 
        on Indian reservations is extraordinary and may call 
        for dramatic action to encourage consolidation.

Id., at 712.
    The Amendment's limitations on inheritance by intestate 
succession, especially in the context of the single heir rule, 
are indeed examples of ``dramatic action to encourage 
consolidation.'' \56\ On the other hand, owners of trust or 
restricted interests in land may devise this property to lineal 
descendants and many other persons who are eligible devisees of 
the property. Therefore, the Amendment's probate code would 
provide landowners with a strong incentive to write wills 
rather than simply ``default'' to the law of intestate 
succession, which, even under the narrow rules of the 
Amendment's probate code, would inevitably lead to some 
fractionation. At the same time, because landowners would have 
real testamentary choices under the Amendment, the 
constitutionality issues enunciated in Irving and Babbitt v. 
Youpee, and cases such as Phillips v. Washington Legal 
Foundation, 524 U.S. 156 (1998), wherein the Rehnquist Court 
relies on Irving in a non-Indian setting, have been addressed.
---------------------------------------------------------------------------
    \56\ However, the intestate provisions of the Amendment do not go 
nearly as far as the majority of the Court in Irving suggests that 
Congress might go in order to resolve the fractionation problem--i.e., 
with the Amendment, Congress would not be ``abolishing descent of such 
interest by rules of intestacy'' and ``forcing the owners to formally 
designate an heir to prevent escheat to the Tribe.'' Irving, at 718. 
The Committee recognizes, then, that there are ways in which 
Amendment's probate code might have provided an even more ``dramatic'' 
solution to fractionation than it does and still have been 
constitutional. However, the probate code is intended to apply to trust 
and restricted lands in many different areas and reservations across 
the United States that are characterized by great diversity in local 
circumstances, and the most aggressive uniform Indian probate code that 
the constitution would allow would not be appropriate in many parts of 
Indian country.
---------------------------------------------------------------------------
    The Amendment includes additional mechanisms, beyond the 
probate code, that are intended to facilitate the consolidation 
of fractional interests. For example, section 4 of the 
Amendment amends 25 U.S.C. 2204 (ILCA section 205) by creating 
a process for the partition by sale of certain highly 
fractionated Indian lands. This provision would allow the 
Indian owners of undivided interests in tracts of land that 
meet the definition of ``highly fractionated'' \57\ to request 
that the Secretary partition the property by sale.\58\ Another 
example of a ``consolidating mechanism'' in the Amendment is 
the amendment to ILCA section 207 that would allow the coowners 
of trust or restricted interests, co-heirs and the Indian tribe 
to purchase, at not less than fair market value, fractional 
interests in a decedent's estate prior to entry of the order 
distributing the estate. Under this provision, the heirs' 
consent would be required except where the heir's interest is 
less than 5% of the entire undivided ownership of the parcel of 
which it is a part and such interest is passing without a will.
---------------------------------------------------------------------------
    \57\ The definition section of ILCA (section 202) is amended to 
include the term ``parcel of highly fractionated Indian land,'' which 
is defined as any parcel that has either (1) 50 to 99 coowners, none of 
whom holds an undivided trust or restricted interest in the parcel that 
is greater than 10 percent of entire undivided ownership, or (2) 100 or 
more co-owners of undivided trust or restricted interests.
    \58\ The partition provision includes a requirement that the party 
requesting the partition be responsible for the costs of mailing and 
publishing notice to co-owners and pay the estimated costs, or submit a 
bond for that amount, ``up front.'' There are two primary purposes for 
this requirement. First, the partition contemplated by this subsection 
will result in the forced sale of fractionated interests held by a 
great number of individuals, and it is appropriate that the process be 
initiated only by persons who have a genuine desire to have their 
property partitioned. Furthermore, although each administrative 
partition action should result in a significant collective benefit to 
Indian landowners and a benefit to the United States--consolidation of 
ownership of a parcel of land from dozens, hundreds or, in some cases, 
thousands of co-owners down to a single owner, and with that, a 
dramatic decline in the costs incurred by the Department in managing 
and tracking fractional interests--each such action will nevertheless 
demand considerable time, effort and resources of the Department to 
complete. Therefore, the second purpose behind the requirement that the 
party requesting the partition be responsible for mailing and 
publication costs is to control the number of requests for partition to 
which the Secretary must respond and to assure that the process is not 
easily abused or invoked for reasons other than for the consolidation 
of interests (for example, to simply have the property appraised). The 
Committee is nevertheless mindful that, in a great number of cases, the 
cost of mailing and publication will exceed the proportionate share of 
the proceeds that any one owner of a fractional interest stands to 
receive from a sale of the property, so that there may be little 
incentive for any such co-owner to initiate the process (with the 
exception of co-owners who initiate the process to bid for and acquire 
full ownership of the land). Accordingly, the Secretary is given the 
express authority and discretion to waive this payment and bonding 
requirement, in whole or in part, in any case where doing so would 
further the purposes of the Act.
---------------------------------------------------------------------------
    As noted above, the Committee received testimony from the 
Department indicating that the fractional interest acquisition 
program has achieved some success but that, since the 
initiation of that program, the rate of fractionation has been 
equal to or greater than the rate at which the Department has 
been able to purchase fractional interest from landowners. The 
Amendment attempts to address this problem with amendments to 
ILCA that are intended to (1) improve and facilitate the 
implementation and execution of the fractional interest 
acquisition program (see, for example, the amendments to ILCA 
section 213 (25 U.S.C. 2212 in section 6(a)(5) of the 
Amendment); (2) put a ``floor'' on fractionation with the 
``single heir rule'' applicable to intestate succession of 
small interests (see discussion above); and (3) keep fractional 
interests under a Federal probate code that slows the rate of 
fractionation and promotes consolidation, as opposed to state 
probate codes which tend to promote fractionation.\59\
---------------------------------------------------------------------------
    \59\ Allowing fractional trust or restricted interests to pass into 
fee status and to become subject to state laws of intestate succession 
(and frequently the laws of multiple States, whenever decedents die 
possessed of trust or restricted interests in reservations situated in 
several States), means that those interests will likely continue to 
fractionate and thereby further complicate and enlarge the Department's 
difficulties in managing, and consolidating the ownership of, highly 
fractionated tracts of Indian land. On the other hand, by keeping these 
interests in trust or restricted status, the Amendment would facilitate 
the consolidation of fractional interests by allowing co-heirs, co-
owners, the tribe with jurisdiction over the interest or the Secretary 
on behalf of the tribe to exercise the ``purchase option at probate,'' 
or to allow heirs to enter into consolidation agreements during probate 
proceedings. In short, maintaining the trust or restricted status of 
these fractional interests operates to further the principal goals of 
the ILCA and the Indian policies it embodies: consolidation of 
fractional interests and ownership of those interests into usable 
parcels of land and reversing the effects of the allotment policy on 
Indian tribes.
---------------------------------------------------------------------------

                          Legislative History

    S. 1721 was introduced by Senator Campbell on October 14, 
2003, and was referred to the Committee on Indian Affairs. On 
November 12, 2003, at the request of Senator Campbell, Senator 
Thomas was added as a co-sponsor of S. 1721. Although the 
Committee on Indian Affairs did not hold a hearing on S. 1721 
itself, the Committee held two hearings on a predecessor bill 
to S. 1721, to wit, S. 550, on May 7 and October 15, 2003.

            Committee Recommendation and Tabulation of Vote

    In an open business session on January 28, 2004, the 
Committee on Indian Affairs, by voice vote, adopted an 
amendment in the nature of a substitute offered by Senator 
Campbell and ordered the bill reported to the Senate. Before 
the bill was delivered to the Clerk of the Senate, the Senate 
Committee on Indian Affairs, in an open business session on 
April 21, 2004, approved the amendment in the nature of a 
substitute by voice vote and ordered the bill, as amended, 
reported favorably to the Senate.

                      Section-by-Section Analysis


Section 1. Short title

    This section sets forth the short title of the bill: 
``American Indian Probate Reform Act of 2004.''

Section 2. Findings

    This section sets forth the findings in support of the 
provisions of the bill, including the General Allotment Act's 
provisions directing that Indian allotments would descend in 
accordance with the State law of intestate succession based on 
the location of the allotment, and how this Congressional 
reliance on State law has contributed to fractionation and, 
where lands are located in more than 1 state, made estate 
planning unnecessarily difficult. The findings section also 
states the advantages of a single uniform probate code, 
including a reduction in fractionation, facilitation of efforts 
to provide estate planning and inter-tribal efforts to develop 
tribal probate codes, and that a uniform probate code should 
operate to further the policy of the United States as set forth 
in the 2000 Amendments.

Section 3. Indian probate reform

    Section 3 of the Amendment amends ILCA by replacing 
existing subsections (a) and (b) of section 207 (25 U.S.C. 2206 
(a) and (b)) of the ILCA with a new uniform Indian probate code 
that includes provisions for intestate succession (i.e., where 
there is no valid will) of interests in trust and restricted 
lands and trust funds, as well as for the testamentary devise 
(i.e., by will) of such interests and funds. Section 3 also 
amends and subsection (c) relating to joint tenancy by creating 
a rule of construction for devises of trust or restricted 
interests in land to multiple devisees.
    Generally, the uniform Federal Indian probate code 
(amendments to subsections (a) and (b) of ILCA section 207) 
would apply to the inheritance of trust or restricted land and 
trust funds unless a tribal probate code applicable to a 
particular reservation has been approved by the Secretary of 
Interior pursuant to section 206 of ILCA (25 U.S.C. 2205). The 
Amendment also includes a provision that makes the uniform 
Indian probate code and other provisions of the ILCA 
inapplicable to specific reservations or trust and restricted 
lands that are governed by special Federal laws that expressly 
identify those reservations or lands.
    Where the owner of trust or restricted land dies without a 
will, the probate code's general rule of intestate succession 
provides that interests in trust or restricted lands and trust 
funds will pass to ``eligible heirs'' within the following 
successive classes of heirs: the decedent's surviving children 
or, by ``right of representation,'' grandchildren (meaning a 
grandchild only shares what his or her deceased parent would 
have received had the parent outlived the decedent), then the 
surviving great-grandchildren, then the surviving parents, then 
surviving siblings--with members of each succeeding class 
inheriting only if the interest does not pass to one or more 
members of the previous classes. If an interests does not pass 
to some member of any of the forgoing classes, then the Indian 
tribe with jurisdiction over the interest inherits it as the 
heir of last resort.\60\
---------------------------------------------------------------------------
    \60\ The Amendment also provides for the contingency of there being 
no such tribe to inherit the property, by allowing for division of an 
interest among co-owners of trust or restricted interests in the same 
parcel and, in the absence of such co-owners, sale of the interest and 
use of the proceeds under the ILCA's fractional interest acquisition 
program.
---------------------------------------------------------------------------
    The probate code includes a special rule applicable to the 
inheritance of small fractional interests (specifically, any 
fractional interest that is less than 5% of the total undivided 
ownership of the parcel of which it is a part) passing without 
a will--the ``single heir rule.'' These small interests may be 
inherited by only one person: the oldest eligible heir among 
the decedent's surviving children, and if there are no eligible 
heirs among the children, then the oldest eligible heir among 
the decedent's surviving grandchildren, and if there are no 
such heirs among the surviving grandchildren, then the oldest 
eligible heir among the decedent's surviving great-
grandchildren, and if there are no eligible heirs among the 
great-grandchildren, then the Indian tribe.\61\ However, the 
single heir rule does not apply to an interest passing under a 
valid will, and the code authorizes the tribe to adopt a 
different rule of succession for these small fractional 
interests, but only if the tribal rule provides for inheritance 
of the interest by one person, to prevent further 
fractionation.
---------------------------------------------------------------------------
    \61\ Both the general rule of succession and the single heir rule 
provide for division of the interest equally among all co-owners of 
trust or restricted interests in the same parcel where there are no 
individual heirs and no Indian tribe to inherit the interest, and for 
the sale of the interest and application of proceeds to the fractional 
interest acquisition program in the unlikely event that there are no 
individual heirs, no tribe and no co-owners.
---------------------------------------------------------------------------
    The probate code also authorizes an owner of trust or 
restricted land to ``devise'' (to pass property on by executing 
a will) the land in trust or restricted status to the 
testator's lineal descendants, any person who owns a pre-
existing trust or restricted interest in the same parcel of 
land, the Indian tribe with jurisdiction over the interest, or 
any Indian. The owner may also give a life-estate to any 
person, and may devise the interest in non-trust status to 
persons who are not Indian.
    The Amendment also sets forth sets out rules for 
interpretation of wills under the probate code, rules 
preventing ``heirship by killing,'' and general rules governing 
probate that (1) address pretermitted spouses and children, 
divorce, after-born heirs, advancements of trust or restricted 
personalty during lifetime, multiple lines of inheritance, and 
(2) give the Secretary authority to approve renunciations of 
inherited interests by heirs and consolidation agreements 
within the context of probate proceedings. The Amendment also 
provides a rule of construction for a term used throughout the 
probate code (``applicable federal law'') and a provision that 
makes the Act inapplicable to lands and allotments that are 
already the subject of special legislation expressly applicable 
to specific Indian reservations or to the allotted lands of 
specific tribes.

Section 4. Partition of highly fractionated indian lands

    This section amends ILCA section 205 by adding a new 
subsection authorizing any co-owner of an interest in a parcel 
of trust or restricted land that is highly fractionated to 
request the Secretary to commence the partition by sale of the 
parcel.\62\ The Secretary is authorized to proceed if the 
parcel meets the definition of ``highly fractionated,'' that 
is, if it has at least 50-99 co-owners, no one of whom owns an 
undivided interest that is greater than 10% of the whole, or by 
100 or more co-owners. The requesting party is responsible for 
payment of the costs of providing notice and publication, 
although the Secretary may waive this requirement if doing so 
would further the policies of the ILCA.\63\
---------------------------------------------------------------------------
    \62\ By its terms, the partition process will not be immediately 
available. Subsection (d)(2) states that no application for partition 
``shall be valid or considered if it is received by the Secretary prior 
to the date that is 1 year after the date on which notice is published 
pursuant to section 8(a)(4) American Indian Probate Reform Act of 
2004.''
    \63\ See footnote 58.
---------------------------------------------------------------------------
    If a parcel is determined by the Secretary to meet this 
test, the land may be partitioned by sale--by auction or sealed 
bids--for not less than its fair market value, subject to 
certain consent requirements (for example, where the tribe owns 
an interest in the parcel, its consent is required, or where a 
co-owner has been residing or operating a business on the 
property). Generally, only parties eligible to bid at the 
partition sale would be the Indian tribe, members of the tribe, 
descendants of the original allotee and co-owners of trust 
interests in the property who are members of an Indian tribe 
other than the tribe with jurisdiction over the interest.\64\ 
The Amendment would allow the owner of the largest interest in 
the tract to match the highest bid if that interest is greater 
than 20% of the whole, and, subject to certain conditions, it 
would also allow the tribe of jurisdiction to match the highest 
bid if the high bidder is not a member of that tribe. The 
Secretary is authorized to adopt any regulations that may be 
necessary to implement the partition provision. Any such 
regulations must include provisions for giving notice of 
partition sales to eligible bidders.
---------------------------------------------------------------------------
    \64\ For land in the State of California not within a tribe's 
reservation or subject to a tribe's jurisdiction, the only eligible 
purchasers would be persons who are members or eligible to be members 
of a tribe and owners of trust or restricted interests in the parcel 
being partitioned.
---------------------------------------------------------------------------

Section 5. Owner managed interests

    This section would add a new section to ILCA that would 
authorize the owners of trust or restricted lands to enter into 
surfaces leases of their lands for a term of not more than 10 
years, for agricultural purposes only. Before any interest 
would acquire ``owner managed'' status under the section, all 
of the owners of trust or restricted interests in the same 
parcel must agree upon the status--so that no parcel would be 
partially owner-managed and partially managed by the Secretary. 
Once a parcel acquires owner-managed status, it would remain 
owner-managed despite transfer or conveyance of trust or 
restricted interests to new owners, until such time that all 
owners of such interests have submitted applications to the 
Secretary to revoke the status. The Secretary is not 
responsible for the collection of or accounting for revenues 
under a lease authorized by this section so long as the 
interests are in owner-managed status. However, if owner-
managed status is revoked, the Secretary must collect and 
account for all future revenues from and after the date of 
revocation, but revocation of the owner-managed status does not 
affect the validity of a lease that was made in accordance with 
the section prior to the date of revocation.

Section 6. Additional amendments

    This section of the substitute amendment to S. 1721 amends 
various sections of ILCA, in both technical and substantive 
ways. The following is a brief description of the more 
substantive amendments that S. 1721 makes to ILCA.
            (a) Purchase option at probate
    This new provision would allow the heirs of undivided trust 
or restricted interests (and surviving spouses who are 
receiving a life estate) to voluntarily sell their interests, 
for not less than fair market value, to ``eligible'' purchasers 
during probate proceedings. Eligible purchasers include co-
heirs of the same property in the estate, co-owners of trust or 
restricted interests in the same parcel of land involved in the 
estate, and the Indian tribe with jurisdiction over the 
interest or the Secretary on behalf of that tribe. The sale 
would require the heirs' consent, unless the interest passing 
was less than 5% of the parcel of which it was a part and the 
interest is passing without a will, and if more than one 
eligible purchaser wishes to purchase the interest, the 
Secretary must sell it by auction to the highest bidder among 
the eligible purchasers. If the interest is less than a 5% 
interest and is passing without a will, any of the eligible 
purchasers could force the sale at probate--unless the heir was 
residing on the parcel at the time of the decedent's death, in 
which case the heir's consent would still be required. As with 
the ``single heir rule,'' any owner of trust property may avoid 
this involuntary sale of small interests simply by writing a 
will. The provisions of this subsection would not apply to any 
interest that is subject to a consolidation agreement 
authorized under ILCA section 207(e) or by the new provision 
that the Amendment would add as ILCA section 207(k)(9).
            (b) Tribal probate code limitations
    This section disallows approval of a tribal probate code 
under ILCA section 206 if the code prohibits devises to lineal 
descendants of the original allottee or to an Indian who is not 
a member of the tribe with jurisdiction over the interest, 
unless the tribal code, in the context of those devises, also 
provides for renunciation of the interest to an eligible 
devisee, the opportunity for a devisee who is a surviving 
spouse or lineal descendent of a testator to reserve a life 
estate, and payment of fair market value as provided under ILCA 
section 206(c)(2). It also places a ``family farm'' exception 
on the right of a tribe to purchase an interest devised to a 
non-Indian person under 25 U.S.C. section 2205(c), where the 
devisee is a member of the decedent's family (lineal descendant 
of the decedent or landowner or of the grandparent of the 
decedent or landowner, a spouse of the decedent or landowner, 
or the spouse of the decedent's or landowner's lineal 
descendant) and the devisee agrees that the tribe will have the 
opportunity to acquire the interest if the interest is offered 
for sale to a non-family member.
            (c) Fractional Interest Acquisition Program and Secretarial 
                    liens on acquired interests
    The substitute amendment to S.1721 would make several 
revisions to ILCA sections 213 and 214 (25 U.S.C. 2212 and 
2213) relating to the fractional interest acquisition program, 
designed to improve the manner in which it is carried out. One 
change is that the 3-year limitation placed on the program is 
eliminated. Several other provisions of this section are 
designed to facilitate the administration of the acquisition 
program, inter alia, by allowing the Secretary to make program 
acquisitions in the context of probate proceedings (i.e., 
allowing the Secretary to exercise the ``purchase option at 
probate'' on behalf of the tribe). The Amendment would also 
authorize to be appropriated $75,000,000 for fiscal year 2005, 
$95,000,000 for fiscal year 2006, and $145,000,000 for each of 
fiscal years 2007 through 2010 for purposes of carrying out the 
acquisition program under ILCA section 213 (25 U.S.C. 2212).
    The Amendment also gives the Secretary discretion to remove 
of Secretarial liens in certain circumstances, and facilitates 
the financing of repayment obligations of individual Indians 
who purchase reacquired interests under the program from the 
Secretary.
    This section of the Amendment also includes a provision 
that would give the tribe with jurisdiction a right of first 
refusal to purchase any interest that is the subject of an 
application to terminate trust status or remove restrictions by 
matching any offer being paid for the interest or, if there is 
no such offer, paying fair market value for the interest. There 
is an exception for conveyances of interests that are part of a 
``family farm'' being conveyed to a ``family member'' as 
defined in section 206(c)(2)(A)(iv) (see discussion in (b), 
above, relating to tribal probate codes) if the conveyance 
requires that the tribe with jurisdiction over the interest be 
afforded to purchase match the offered price or pay fair market 
value where no price is offered.
            (d) Establishing fair market value
    Section 216 (25 U.S.C. 2215), which allows the Secretary to 
develop a system for establishing fair market value of various 
types of lands and improvements to for purposes of the 
fractional interest acquisition program, is amended by having 
it govern amounts to be offered under the other provisions of 
the ILCA as well.
            (e) Acquisition fund
    The Amendment makes technical changes to the wording of 
ILCA section 216 (25 U.S.C. 2215), and requires that all 
proceeds from leases, permits and sales derived from interests 
acquired under section 213 (25 U.S.C. 2212) or paid by Indian 
landowners under that section be used for the acquisition of 
undivided interests. It also authorizes the Secretary to use 
the revenues to acquire undivided interests in accordance with 
section 205 (25 U.S.C. 2204).
            (f) Trust and restricted land transactions
    The Amendment amends ILCA section 217 (25 U.S.C. 2216) 
which authorizes certain sales, exchanges and gift deeds for no 
or nominal consideration between certain Indian family members 
and between an Indian and the Indian tribe provided that the 
grantor is first given an estimate of value of the interest. 
The grantor may waive the requirement of an estimate if the 
conveyance is to certain family members. The Amendment would 
also allow the written waiver in the context of transfers to 
the tribe with jurisdiction over the interest as well as to co-
owners if the grantor's interest represents 5 percent or less 
of the parcel.
    Section 217 is also amended in subsection (e) by making 
certain the names, and mailing addresses of the owners of any 
interest in trust or restricted lands available to designated 
persons upon written request.
    Finally, section 217 is amended by requiring the Secretary, 
before approving an application to terminate trust status of, 
or remove restrictions from, a parcel of trust or restricted 
land, to provide the tribe with jurisdiction over the property 
with the right to match any offer to purchase the parcel in the 
application or to pay fair market value where there is no 
purchase price offered. This section provides an exception for 
family farms, where the conveyance is to a member of the family 
of the landowner.
            (g) Approvals of leases, rights-of-way, and sales of 
                    natural resources
    ILCA section 219 (25 U.S.C. 2218) is amended, first, in 
subsection (b)(1)(A) by changing the consent percentage for 
leases and agreements relating to trust or restricted land 
owned by 5 or fewer persons from 100 down to 90 percent, and, 
second, by adding a section that says nothing in the Act 
supersedes, repeals or modifies any general or specific statute 
authorizing the grant or approval of any land use transaction 
involving fractional interests in trust or restricted land.
            (h) Definitions
    The substitute amendment would amend the definitions of 
several terms and it would add new defined terms, including 
``Indian,'' ``trust or restricted lands'' and ``trust or 
restricted interest in land,'' ``parcel of highly fractionated 
Indian land,'' ``land,'' ``person'' and ``individual,'' 
``eligible heirs'' and ``without regard to waste.'' See, also, 
discussion above regarding the defined terms ``Indian,'' 
``eligible heirs'' and ``highly fractionated Indian lands.''
            (i) Revisions to the acts of February 8, 1887 (25 U.S.C. 
                    348) and June 18, 1934 (25 U.S.C. 464)
    The provisions of two acts, section 5 of the Indian General 
Allotment Act (25 U.S.C. 348, the ``GAA'') and section 4 of the 
Indian Reorganization Act (25 U.S.C. 464, the ``IRA''), 
respectively, would be amended so as to conform them to changes 
to the ILCA. Section 5 of the GAA is amended to reflect that 
the Amendment's probate code, or an applicable tribal probate 
code, will apply to the land for which trust patents have been 
issued, and similar conforming amendments are made to section 4 
of the IRA.
            (j) Estate planning and probate code development
    The Amendment would amend ILCA section 207(f)(1) and (2) 
(25 U.S.C. 2206(f)(1) and (2)) by including language that the 
Secretary's (1) activities under this subsection shall be in 
accordance with any applicable tribal probate code or land 
consolidation plan, and (2) estate planning assistance program 
should dramatically increase the use of wills and reduce the 
number and complexity of estate passing by intestate 
succession, and by adding a new provision authorizing grants to 
non-profit and other organizations to provide estate planning 
services to Indians and probate code development assistance to 
Indian tribes and Indian organizations.
            (k) Notification to landowners
    The Amendment adds a new subsection to ILCA section 207 
requiring the Secretary to provide certain ownership 
information relating to a parcel of trust or restricted land 
upon written request by an owner of an interest in the parcel.
            (l) Pilot program for the management of trust assets of 
                    Indian families and relatives
    This section of the Amendment also includes revisions to 
ILCA section 207 that would authorize the Secretary to 
establish, with certain limitations, a pilot project whereby 
private and family trusts or other entities would facilitate 
and assist in the management of trust assets owned by Indian 
family members and relatives in furtherance of the purposes of 
the ILCA. The total number of entities participating in the 
pilot project cannot exceed thirty, and no such entity may 
engage in activities under the project until implementing 
regulations have been adopted. The subsection includes 
provisions that any transactions involving the lease, use, 
mortgage or other disposition of trust assets administered by 
an entity under the pilot program requires approval by the 
Secretary in accordance with applicable Federal law and that 
authorize the Secretary to make payments of income or revenues 
derived from such assets directly to a participating entity in 
accordance with regulations adopted pursuant to the subsection.
            (m) Giving notice to and locating heirs
    Section 6 of the Amendment includes two new subsections to 
section 207 of ILCA pertaining to the manner of searching for 
heirs and dealing with heirs whose whereabouts have been 
unknown for extended periods. The bill provides that if the 
Secretary determines during the probate hearing that a missing 
heir has had no contact with the Department for a 6-year period 
preceding the hearing, that heir may be presumed to have 
predeceased the decedent for purposes of descent and 
distribution of trust or restricted land and trust personalty 
within that decedent's estate.

Section 7. Annual notice and filing; current whereabouts of interest 
        owners

    This section adds a new section to ILCA requiring the 
Secretary to send landowners written notice, at least annually, 
along with other regular reports to owners of trust or 
restricted lands or individual Indian money accounts, a change 
of address form to confirm or update the owner's name and 
address.

Section 8. Notice of amendments and effective date

    This section requires the Secretary to give notice to 
Indian landowners of the amendments made by this Act informing 
the landowners of estate planning options and transactions that 
may be used to consolidate ownership of land, and, after doing 
so, to certify that the notice requirements have been met--in 
the same manner required under the 2000 amendments to ILCA--and 
to thereafter certify that notice had been given. This section, 
also like the 2000 amendments, states that the amendments would 
not apply to the estate of any individual who dies before the 
date that is 1 year after the date of the Secretary's 
certification.

Section 9. ``Severability''

    This section sets forth a ``severability clause'' 
applicable to the Act.

                    Cost and Budgetary Consideration

    The cost estimate for S. 1721, as amended, as calculated by 
the Congressional Budget Office, is set forth below:

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 13, 2004.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1721, the American 
Indian Probate Reform Act of 2004.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Lanette J. 
Walker.
            Sincerely,
                                         Elizabeth Robinson
                               (For Douglas Holtz-Eakin, Director.)
    Enclosure.

S. 1721--American Indian Probate Reform Act of 2004

    Summary: S. 1721 would amend laws that regulate how the 
ownership of interest in Indian trust or restricted land 
(certain parcels of land that are owned by individuals or 
groups) is transferred upon the death of the owner. CBO 
estimates that implementing the bill would cost $25 million in 
2005 and $457 million over the 2005-2009 period for the 
Secretary of the Interior to acquire interests in trust or 
restricted land and to administer the grant and loan programs 
that would be established under the bill. This activity is 
known as Indian land consolidation, and costs for this purpose 
would be subject to appropriation of the necessary sums. Most 
of the costs would stem from specified authorizations in S. 
1271.
    S. 1721 also would authorize the Secretary of the Interior 
to acquire certain interests in Indian trust or restricted land 
using revenue collected from leasing of natural resources on 
Indian land that has been acquired by the Secretary or from the 
sale of such land. Because such acquisitions could be made 
without appropriations, enacting S. 1721 would increase direct 
spending, but CBO estimates these costs would be less than 
$500,000 in each year over the 2005-2014 period.
    S. 1721 contains no intergovernmental mandates as defined 
in the Unfunded Mandates Reform Act (UMRA) and would impose no 
significant costs on state, local, or tribal governments.
    S. 1721 contains two private-sector mandates as defined in 
UMRA. The bill would impose a private-sector mandate on 
individuals who would otherwise inherit interests in Indian 
lands under current law. The bill also would allow the 
Secretary of the Interior to partition parcels of Indian land 
for sale under certain conditions. In the event that land is 
partitioned for sale without the consent of all the interest 
owners, S. 1721 would impose a private-sector mandate on those 
not consenting to the partition. CBO estimates that the direct 
cost of mandates in the bill would fall below the annual 
threshold established by UMRA for private-sector mandates ($120 
million in 2004, adjusted annually for inflation). The bill 
also may benefit interest owners in Indian trust and restricted 
lands since it would remove certain restrictions on the use of 
such lands.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of S. 1721 is shown in the following table. 
The costs of this legislation fall within budget function 450 
(community and regional development).

----------------------------------------------------------------------------------------------------------------
                                                                  By fiscal year, in millions of dollars--
                                                           -----------------------------------------------------
                                                              2004     2005     2006     2007     2008     2009
----------------------------------------------------------------------------------------------------------------
                                        SPENDING SUBJECT TO APPROPRIATION

Spending for Indian Land Consolidation Under Current Law:
    Budget Authority......................................       22        0        0        0        0        0
    Estimated Outlays.....................................       13       12        5        2        0        0
Proposed Changes:
    Purchase of Indian trust and restricted land by the
     Secretary of the Interior:
        Authorization Level...............................        0       75       95      145      145      145
        Estimated Outlays.................................        0       23       59       97      128      140
    Tribal Grants to Develop Probate Codes and Estate
     Planning:
        Estimated Authorization Level.....................        0        2        2        2        2        2
        Estimated Outlays.................................        0        2        2        2        2        2
    Grants and Loans to Indians to purchase partitions at
     auction:
        Estimated Authorization Level.....................        0        *        *        *        *        *
        Estimated Outlays.................................        0        *        *        *        *        *
Total Proposed Changes:
    Enacted Authorization Level...........................        0       77       79      147      147      147
    Estimated Outlays.....................................        0       25       61       99      130      142
Total Spending Under S. 1721:
    Estimated Authorization Level.........................       22       77       97      147      147      147
    Estimated Outlays.....................................       13       37       66      101      130      142
----------------------------------------------------------------------------------------------------------------
Note.--* = less than $500,000.

    Basis of estimate: For this estimate, CBO assumes that S. 
1721 will be enacted near the beginning of fiscal year 2005, 
and that the authorized and estimated amounts will be 
appropriated for each year. We also assume that outlays will 
follow the historical spending pattern of the Indian Land 
Consolidation Pilot Program.
    The federal government originally allotted interests in 
trust and restricted land to individual Indians over a century 
ago. Over time, the number of owners of such allotted land has 
grown as owners have passed ownership on to their descendants. 
The cost to the Bureau of Indian Affairs (BIA) to administer 
ownership of this property has also grown. S. 1721 would modify 
the Indian Land Consolidation Act, which attempts to prevent 
further partitioning of such land.

Spending subject to appropriation

    S. 1721 would authorize the appropriation of $75 million in 
2005, $95 million in 2006, and $145 in each of 2007 through 
2010 for the Secretary to acquire undivided interests in Indian 
trust and restricted lands from willing sellers at fair market 
value and to collect any revenue generated from the leasing of 
natural resources on that interest. CBO estimates that 
appropriating the specified amounts would result in outlays of 
$23 million in 2005 and over $440 million over the five-year 
period for purchases of such land.
    The bill also would authorize the Secretary of the Interior 
to provide grants to Indian tribes to develop tribal probate 
codes and provide estate planning services to tribal members. 
Based on information from the Department of the Interior (DOI), 
CBO estimates that implementing this provision would cost $2 
million in each year over the 2005-2009 period for the 
Secretary to provide such grants.
    In addition, S. 1721 would establish a process whereby an 
owner in an undivided parcel of land or the tribe may apply for 
the partition (when a parcel of land with multiple owners is 
split into discrete pieces) by sale of certain parcels of trust 
or restricted land. S. 1721 would authorize DOI to provide 
grants and low-interest loans to individuals who successfully 
bid on Indian land auctioned by the Secretary on behalf of an 
owner who wishes to partition and sell their interest in such 
land. Based on information from the department, CBO estimates 
that providing such grants and loans would cost the federal 
government about $1 million over the five-year period, subject 
to the availability of appropriated funds.
    Based on information from BIA, CBO expects that 
implementing S. 1721 could result in some administrative cost 
savings to that agency because there would be fewer individual 
owners of interests in trust and restricted lands. Any such 
savings would depend on amounts appropriated in the future, but 
CBO estimates that savings would not be significant over the 
2005-2009 period.

Direct spending

    Under current law, the Department of the Interior may 
spend--subject to appropriation--any receipts from natural 
resource leases on trust or restricted land that has been 
purchased by the Secretary or any proceeds from the sale of 
such land. Subject to appropriation, the Secretary is 
authorized to spend such funds to acquire additional interests 
in Indian land, so long as the additional land is located on 
the same reservation that generated those leasing receipts or 
land sale proceeds.
    S. 1721 would authorize the Secretary to spend such 
receipts or land sale proceeds without further appropriation. 
Since the start of the program in 1999, the department has 
collected nearly $200,000 from such transactions. CBO estimates 
that enacting this provision would increase direct spending by 
about $200,000 in 2005 and a negligible amount in each 
subsequent year over the 2006-2014 period.
    Estimated impact on state, local, and tribal governments: 
S. 1721 contains no intergovernmental mandates as defined in 
UMRA and would impose no significant costs on state, local, or 
tribal governments.
    Estimated impact on the private sector: S. 1721 contains 
two private-sector mandates as defined in UMRA. The bill would 
impose a private-sector mandate on individuals who would 
otherwise inherit interests in Indian trust or restricted lands 
under current law. The bill also would allow the Secretary of 
the Interior to partition parcels of Indian land for sale under 
certain conditions. In the event that land is partitioned for 
sale without the consent of all the interest owners, S. 1721 
would impose a private-sector mandate on those not consenting 
to the partition. CBO estimates that the direct cost of 
mandates in the bill would fall below the annual threshold 
established by UMRA for private-sector mandates ($120 million 
in 2004, adjusted annually for inflation). The bill also may 
benefit interest owners in Indian trust and restricted lands 
since it would remove certain restrictions on the use of such 
lands.

Intestate disposition of interests in trust and restricted lands

    S. 1721 would amend federal probate laws that govern how an 
individual's interest in certain parcels of Indian land is 
transferred upon death. The bill would impose a private-sector 
mandate on certain individuals who would inherit interest in 
trust or restricted lands under current law. Indian trust or 
restricted lands are those lands held by the United States in 
trust for an Indian tribe or held by an individual Indian or 
tribe subject to restrictions against transferring such 
property.
    Currently, the probation of Indian trust and restricted 
lands follows the laws for intestate succession of the state 
where the land is located in cases where there is no tribal 
probate code. In such cases when there are no heirs in the 
immediate family, distant relatives would be eligible to 
inherit land interests under current law. Under S. 1721, such 
distant relatives would not be eligible heirs in certain cases. 
The loss of inheritance could impose costs on persons who would 
otherwise receive an interest in such property. The changes in 
probate code would apply to very small interests in few cases. 
CBO expects that the cost of the mandate would be small.

Partition of highly fractionated Indian lands

    The bill also would allow the Secretary of the Interior to 
partition certain parcels of Indian lands with a large number 
of owners for sale at the request of the Indian tribe with 
jurisdiction over the land or any owner of an interest in the 
parcel. To partition the land, among other conditions, the 
Secretary must obtain the written consent of the Indian tribe 
with jurisdiction, any owner who has kept residence or operated 
a business (including a farm or ranch) on the land for the 
three years preceding the date of the request for partition, 
and the owners of at least 50 percent of the undivided 
interests in the parcel if at least one owner's undivided 
interest has a value in excess of $1,500. The bill would impose 
a mandate on those interest owners not consenting to the 
partition. CBO estimates that the cost the mandate would impose 
on nonconsenting interest holders would be small. The interests 
involved are small, and all owners of interests in the 
partitioned land would receive compensation equal to at least 
the fair market value of their interest in land.
    Estimate prepared by: Federal Costs: Lanette J. Walker; 
Impact on State, Local, and Tribal Governments: Marjorie 
Miller; and Impact on the Private Sector: Selena Caldera.
    Estimate approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

                      Regulatory Impact Statement

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires that each report accompanying a bill evaluate 
the regulatory paperwork impact that would be incurred in 
carrying out the bill. The Committee believes that the 
amendment in the nature of a substitute to S. 1721 will create 
only de minimis regulatory or paperwork burdens.

                        Executive Communications

    The Committee has received a letter dated May 5, 2004, from 
the Department of Interior addressing the amendment in the 
nature of a substitute approved by the Committee on April 21, 
2004. That letter, which generally supports the amendment, is 
set forth below:

                        Department of the Interior,
                                   Office of the Secretary,
                                       Washington, DC, May 5, 2004.
Hon. Ben Nighthorse Campbell,
 Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: This letter sets forth the views of the 
Department of the Interior on S. 1721, the ``American Indian 
Probate Reform Act of 2004'', which was amended in the nature 
of a substitute by the Committee on April 21, 2004. The 
Department would like to thank the Congress for its continued 
efforts to address this extremely important issue. S. 1721 is a 
positive step forward and will provide the Department valuable 
tools to help us stop the exponential growth of fractionated 
interests. The Department generally supports S. 1721.
    As Secretary Norton stated in her letter to you and Senator 
Inouye on April 6, 2004, the Department is committed to 
achieving a just resolution of the issues related to Indian 
Trust and to the four part plan you envisioned for trust 
reform. The plan includes swiftly enacting legal reforms to 
Indian probate, commencing efforts to reconsolidate the Indian 
land base, and returning Indian lands to tribal ownership. The 
Department is in complete agreement that legislation to provide 
for probate reform and tools to strengthen the Department's 
land consolidation effort is needed. As we have stated on 
numerous occasions, this may be our last opportunity to reform 
probate before the current system collapses.
    However, previously we had serious concerns with the 
version of S. 1721 that was moving forward. It was our view 
that modifications to that version were necessary in order to 
make improvements to the current law. Any legislation in this 
area must provide meaningful reform before the Administration 
can support it. Since the last markup in January, we have 
worked extensively with your staff on this issue and are 
pleased to see that many important changes are now reflected in 
the bill.
    Taken as a whole, S. 1721 would provide the Department 
valuable tools for attacking the growing fractionation problem 
facing Indian Country. It is a positive and meaningful step 
forward. We look forward to working with the Congress as the 
legislation moves forward on some remaining issues we have with 
the bill, such as (1) enabling the Department to address the 
aftermath of the Supreme Court's decision in Babbit v. Youpee 
(519 U.S. 234 (1997)), the decision of the District of South 
Dakota decision in DuMarce v. Norton, and other situations 
involving statutes under which highly fractionated intestate 
interests automatically escheat to the tribe; (2) ensuring that 
language creating a new loan program meets Federal credit 
standards; (3) clarifying that the government does not retain 
any liability for owner managed interests; and (4) ensuring 
that any waiver of sovereign immunity is consistent with the 
appropriate type of relief for partition actions.
    Again, the Department would like to thank the Congress for 
its continued effort to address this extremely important issue.
    The Office of Management and Budget has advised that there 
is no objection to the presentation of this report from the 
standpoint of the Administration's program.
            Sincerely,
                                David L. Bernhardt,
                      Director, Office of Congressional and
                Legislative Affairs and Counselor to the Secretary.

                        Changes in Existing Law

    In Compliance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee states that the 
enactment of S. 1721 will result in the following changes in 25 
U.S.C. 2201, et seq., and 25 U.S.C. Sec. Sec. 348 and 464, with 
existing language which is to be deleted in black brackets and 
the new language to be added in italic:

                             25 U.S.C. 2201


Sec. 2201. Definitions

    For the purpose of this chapter--

           *       *       *       *       *       *       *

          (2) [``Indian'' means any person who is a member of 
        any Indian tribe or is eligible to become a member of 
        any Indian tribe, or any person who has been found to 
        meet the definition of `Indian' under a provision of 
        Federal law if the Secretary determines that using such 
        law's definition of Indian is consistent with the 
        purposes of this chapter;] ``Indian'' means--
                  (A) any person who is a member of any Indian 
                tribe, is eligible to become a member of any 
                Indian tribe, or is an owner (as of the date of 
                enactment of the American Indian Probate Reform 
                Act of 2004) of a trust or restricted interest 
                in land;
                  (B) any person meeting the definition of 
                Indian under the Indian Reorganization Act (25 
                U.S.C. 479) and the regulations promulgated 
                thereunder; and
                  (C) with respect to the inheritance and 
                ownership of trust or restricted land in the 
                State of California pursuant to section 207, 
                any person described in subparagraph (A) or (B) 
                or any person who owns a trust or restricted 
                interest in a parcel of such land in that 
                State.

           *       *       *       *       *       *       *

          [(4) ``trust or restricted lands'' means lands, title 
        to which is held by the United States in trust for an 
        Indian or an Indian tribe or lands title to which is 
        held by Indians or an Indian tribe subject to a 
        restriction by the United States against alienation; 
        and]
          (4) ``trust or restricted lands'' means lands, title 
        to which is held in trust by the United States for an 
        Indian tribe or individual, or which is held by an 
        Indian tribe or individual subject to a restriction by 
        the United States against alienation; and ``trust or 
        restricted interest in land'' or ``trust or restricted 
        interest in a parcel of land'' means an interest in 
        land, title to which is held in trust by the United 
        States for an Indian tribe or individual, or which is 
        held by an Indian tribe or individual subject to a 
        restriction by the United States against alienation.

           *       *       *       *       *       *       *

          (6) ``parcel of highly fractionated Indian land'' 
        means a parcel of land that the Secretary, pursuant to 
        authority under a provision of this Act, determines to 
        have, as evidenced by the Secretary's records at the 
        time of the determination--
                  (A) 50 or more but less than 100 co-owners of 
                undivided trust or restricted interests, and no 
                1 of such co-owners holds a total undivided 
                trust or restricted interest in the parcel that 
                is greater than 10 percent of the entire 
                undivided ownership of the parcel; or
                  (B) 100 or more co-owners of undivided trust 
                or restricted interests;
          (7) ``land'' means any real property, and includes 
        within its meaning for purposes of this Act 
        improvements permanently affixed to real property,
          (8) ``person'' or ``individual'' means a natural 
        person;
          (9) ``eligible heirs'' means, for purposes of section 
        207 (25 U.S.C. 2206), any of a decedent's children, 
        grandchildren, great grandchildren, full siblings, half 
        siblings by blood, and parents who are--
                  (A) Indian; or
                  (B) lineal descendants within 2 degrees of 
                consanguinity of an Indian; or
                  (C) owners of a trust of restricted interest 
                in a parcel of land for purposes of inheriting 
                by descent, renunciation or consolidation 
                agreement under section 207 (25 U.S.C. 2206), 
                another trust or restricted interest in such 
                parcel from the decedent; and
          (10) ``without regard to waste'' means, with respect 
        to a life estate interest in land, that the holder of 
        such estate is entitled to the receipt of all income, 
        including bonuses and royalties, from such land to the 
        exclusion of the remaindermen.

                             25 U.S.C. 2204


Sec. 2204. Purchase of trust or restricted or controlled lands at no 
                    less than fair market value; requisite conditions

    (a) In General.--Subject to subsection (b), any Indian 
tribe may purchase at no less than the fair market value part 
or all of the interests in any tract of trust or restricted 
land within that tribe's reservation or otherwise subject to 
that tribe's jurisdiction with the consent of the owners of 
such interests. The tribe may purchase all of the interests in 
such tract with the consent of the owners of [over 50 per 
centum of the undivided interests] undivided interests equal to 
at least 50 percent of the undivided interest in such tract. 
Interests owned by an Indian tribe in a tract may be included 
in the computation of the percentage of ownership of the 
undivided interests in that tract for purposes of determining 
whether the consent requirement under the preceding sentence 
has been met.

           *       *       *       *       *       *       *

    (d) Partition of Highly Fractionated Indian Lands.--
          (1) Applicability.--This subsection shall be 
        applicable only to parcels of land (including surface 
        and subsurface interests, except with respect to a 
        subsurface interest that has been severed from the 
        surface interest, in which case this subsection shall 
        apply only to the surface interest) which the Secretary 
        has determined, pursuant to paragraph (2)(B), to be 
        parcels of highly fractionated Indian land.
          (2) Requirements.--Each partition action under this 
        subsection shall be conducted by the Secretary in 
        accordance with the following requirements:
                  (A) Application.--Upon receipt of any payment 
                or bond required under subparagraph (B), the 
                Secretary shall commence a process for 
                partitioning a parcel of land by sale in 
                accordance with the provisions of this 
                subsection upon receipt of an application by--
                          (i) the Indian tribe with 
                        jurisdiction over the subject land that 
                        owns an undivided interest in the 
                        parcel of land; or
                          (ii) any person owning an undivided 
                        interest in the parcel of land who is 
                        eligible to bid at the sale of the 
                        parcel pursuant to subclause (II), 
                        (III), or (IV) of subparagraph (I)(i);
                provided that no such application shall be 
                valid or considered if it is received by the 
                Secretary prior to the date that is 1 year 
                after the date on which notice is published 
                pursuant to section 8(a)(4) of the American 
                Indian Probate Reform Act of 2004.
                  (B) Costs of serving notice and 
                publication.--The costs of serving and 
                publishing notice under subparagraph (F) shall 
                be borne by the applicant. Upon receiving 
                written notice from the Secretary, the 
                applicant must pay to the Secretary an amount 
                determined by the Secretary to be the estimated 
                costs of such service of notice and 
                publication, or furnish a sufficient bond for 
                such estimated costs within the time stated in 
                the notice, failing which, unless an extension 
                is granted by the Secretary, the Secretary 
                shall not be required to commence the partition 
                process under subparagraph (A) and may deny the 
                application. The Secretary shall have the 
                discretion and authority in any case to waive 
                either the payment or the bond (or any portion 
                of such payment or bond) otherwise required by 
                this subparagraph, upon making a determination 
                that such waiver will further the policies of 
                this Act.
                  (C) Determination.--Upon receipt of an 
                application pursuant to subparagraph (A), the 
                Secretary shall determine whether the subject 
                parcel meets the requirements set forth in 
                section 202(6) (25 U.S. C. 2201(6)) to be 
                classified as a parcel of highly fractionated 
                Indian land.
                  (D) Consent requirements.--
                          (i) In general.--A parcel of land may 
                        be partitioned under this subsection 
                        only if the applicant obtains the 
                        written consent of--
                                  (I) the Indian tribe with 
                                jurisdiction over the subject 
                                land if such Indian tribe owns 
                                an undivided interest in the 
                                parcel;
                                  (II) any owner who, for the 
                                3-year period immediately 
                                preceding the date on which the 
                                Secretary receives the 
                                application, has--
                                          (aa) continuously 
                                        maintained a bona fide 
                                        residence on the 
                                        parcel; or
                                          (bb) operated a bona 
                                        fide farm, ranch, or 
                                        other business on the 
                                        parcel, and
                                  (III) the owners (including 
                                parents of minor owners and 
                                legal guardians of incompetent 
                                owners) of at least 50 percent 
                                of the undivided interests in 
                                the parcel, but only in cases 
                                where the Secretary determines 
                                that, based on the final 
                                appraisal prepared pursuant to 
                                subparagraph (F), any 1 owner's 
                                total undivided interest in the 
                                parcel (not including the 
                                interest of an Indian tribe or 
                                that of the owner requesting 
                                the partition) has a value in 
                                excess of $1,500.
                        Any consent required by this clause 
                        must be in writing and acknowledged 
                        before a notary public (or other 
                        official authorized to make 
                        acknowledgments), and shall be approved 
                        by the Secretary unless the Secretary 
                        has reason to believe that the consent 
                        was obtained as a result of fraud or 
                        undue influence.
                          (ii) Consent by the secretary on 
                        behalf of certain individuals.--For the 
                        purposes of clause (i)(III), the 
                        Secretary may consent on behalf of--
                                  (I) undetermined heirs of 
                                trust or restricted interests 
                                and owners of such interests 
                                who are minors and legal 
                                incompetents having no parents 
                                or legal guardian; and
                                  (II) missing owners or owners 
                                of trust or restricted 
                                interests whose whereabouts are 
                                unknown, but only after a 
                                search for such owners has been 
                                completed in accordance with 
                                the provisions of this 
                                subsection.
                  (E) Appraisal.--After the Secretary has 
                determined that the subject parcel is a parcel 
                of highly fractionated Indian land pursuant to 
                subparagraph (C), the Secretary shall cause to 
                be made, in accordance with the provisions of 
                this Act for establishing fair market value, an 
                appraisal of the fair market value of the 
                subject parcel.
                  (F) Notice to owners on completion of 
                appraisal.--Upon completion of the appraisal, 
                the Secretary shall give notice of the 
                requested partition and appraisal to all owners 
                of undivided interests in the parcel, in 
                accordance with principles of due process. Such 
                notice shall include the following 
                requirements:
                          (i) Written notice.--The Secretary 
                        shall attempt to give each owner 
                        written notice of the partition action 
                        stating the following:
                                  (I) That a proceeding to 
                                partition the parcel of land by 
                                sale has been commenced.
                                  (II) The legal description of 
                                the subject parcel.
                                  (III) The owner's ownership 
                                interest in the subject parcel 
                                as evidenced by the Secretary's 
                                records as of the date that 
                                owners are determined in 
                                accordance with clause (ii).
                                  (IV) The results of the 
                                appraisal.
                                  (V) The owner's right to 
                                receive a copy of the appraisal 
                                upon written request.
                                  (VI) The owner's right to 
                                comment on or object to the 
                                proposed partition and the 
                                appraisal.
                                  (VII) That the owner must 
                                timely comment on or object in 
                                writing to the proposed 
                                partition or the appraisal, in 
                                order to receive notice of 
                                approval of appraisal and right 
                                to appeal.
                                  (VIII) The date by which the 
                                owner's written comments or 
                                objections must be received, 
                                which shall not be less than 90 
                                days after the date that the 
                                notice is mailed under this 
                                clause or last published under 
                                clause (ii)(II).
                                  (IX) The address for 
                                requesting copies of the 
                                appraisal and for submitting 
                                written comments or objections.
                                  (X) The name and telephone 
                                number of the official to be 
                                contacted for purposes of 
                                obtaining information regarding 
                                the proceeding, including the 
                                time and date of the auction of 
                                the land or the date for 
                                submitting sealed bids.
                                  (XI) Any other information 
                                the Secretary deems to be 
                                appropriate.
                          (ii) Manner of service.--
                                  (I) Service by certified 
                                mail.--The Secretary shall use 
                                due diligence to provide all 
                                owners of interests in the 
                                subject parcel, as evidenced by 
                                the Secretary's records at the 
                                time of the determination under 
                                subparagraph (C), with actual 
                                notice of the partition 
                                proceedings by mailing a copy 
                                of the written notice described 
                                in clause (i) by certified 
                                mail, restricted delivery, to 
                                each such owner at the owner's 
                                last known address. For 
                                purposes of this subsection, 
                                owners shall be determined from 
                                the Secretary's land title 
                                records as of the date of the 
                                determination under 
                                subparagraph (C) or a date that 
                                is not more than 90 days prior 
                                to the date of mailing under 
                                this clause, whichever is 
                                later. In the event the written 
                                notice to an owner is returned 
                                undelivered, the Secretary 
                                shall attempt to obtain a 
                                current address for such owner 
                                by conducting a reasonable 
                                search (including a reasonable 
                                search of records maintained by 
                                local, state, federal and 
                                tribal governments and 
                                agencies), and by inquiring 
                                with the Indian tribe with 
                                jurisdiction over the subject 
                                parcel, and, if different from 
                                that tribe, the Indian tribe of 
                                which the owner is a member, 
                                and if successful in locating 
                                any such owner, send written 
                                notice by certified mail in 
                                accordance with this subclause.
                                  (II) Notice by publication.--
                                The Secretary shall give notice 
                                by publication of the partition 
                                proceedings to all owners that 
                                the Secretary was unable to 
                                serve pursuant to subclause 
                                (I), and to unknown heirs and 
                                assigns by--
                                          (aa) publishing the 
                                        notice described in 
                                        clause (i) at least 2 
                                        times in a newspaper of 
                                        general circulation in 
                                        the county or counties 
                                        where the subject 
                                        parcel of land is 
                                        located or, if there is 
                                        an Indian tribe with 
                                        jurisdiction over the 
                                        parcel of land and that 
                                        tribe publishes a 
                                        tribal newspaper or 
                                        newsletter at least 
                                        once every month, 1 
                                        time in such newspaper 
                                        of general circulation 
                                        and 1 time in such 
                                        tribal newspaper or 
                                        newsletter;
                                          (bb) posting such 
                                        notice in a conspicuous 
                                        place in the tribal 
                                        headquarters or 
                                        administration building 
                                        (or such other tribal 
                                        building determined by 
                                        the Secretary to be 
                                        most appropriate for 
                                        giving public notice) 
                                        of the Indian tribe 
                                        with jurisdiction over 
                                        the parcel of land, if 
                                        any, and
                                          (cc) in addition to 
                                        the foregoing, in the 
                                        Secretary's discretion, 
                                        publishing notice in 
                                        any other place or 
                                        means that the 
                                        Secretary determines to 
                                        be appropriate.
                  (G) Review of comments on appraisal.--
                          (i) In general.--After reviewing and 
                        considering comments or information 
                        timely submitted by any owner of an 
                        interest in the parcel in response to 
                        the notice required under subparagraph 
                        (F), the Secretary may, consistent with 
                        the provisions of this Act for 
                        establishing fair market value--
                                  (I) order a new appraisal; or
                                  (II) approve the appraisal;
                        provided that if the Secretary orders a 
                        new appraisal under subclause (I), 
                        notice of the new appraisal shall be 
                        given as specified in clause (ii).
                          (ii) Notice.--Notice shall be given--
                                  (I) in accordance with 
                                subparagraph (H), where the new 
                                appraisal results in a higher 
                                valuation of the land; or
                                  (II) in accordance with 
                                subparagraph (F)(ii), where the 
                                new appraisal results in a 
                                lower valuation of the land.
                  (H) Notice to owners of approval of appraisal 
                and right to appeal.--Upon making the 
                determination under subparagraph (G) the 
                Secretary shall provide to the Indian tribe 
                with jurisdiction over the subject land and to 
                all persons who submitted written comments on 
                or objections to the proposed partition or 
                appraisal, a written notice to be served on 
                such tribe and persons by certified mail. Such 
                notice shall state--
                          (i) the results of the appraisal;
                          (ii) that the owner has the right to 
                        review a copy of the appraisal upon 
                        request;
                          (iii) that the land will be sold for 
                        not less than the appraised value, 
                        subject to the consent requirements 
                        under paragraph (2)(D);
                          (iv) the time of the sale or for 
                        submitting bids under subparagraph (I);
                          (v) that the owner has the right, 
                        under the Secretary's regulations 
                        governing administrative appeals, to 
                        pursue an administrative appeal from--
                                  (I) the determination that 
                                the land may be partitioned by 
                                sale under the provisions of 
                                this section; and
                                  (II) the Secretary's order 
                                approving the appraisal;
                          (vi) the date by which an 
                        administrative appeal must be taken, a 
                        citation to the provisions of the 
                        Secretary's regulations that will 
                        govern the owner's appeal, and any 
                        other information required by such 
                        regulations to be given to parties 
                        affected by adverse decisions of the 
                        Secretary;
                          (vii) in cases where the Secretary 
                        determines that any person's undivided 
                        trust or restricted interest in the 
                        parcel exceeds $1,500 pursuant to 
                        paragraph (2)(C)(iii), that the 
                        Secretary has authority to consent to 
                        the partition on behalf of undetermined 
                        heirs of trust or restricted interests 
                        in the parcel and owners of such 
                        interests whose whereabouts are 
                        unknown; and
                          (viii) any other information the 
                        Secretary deems to be appropriate.
                  (I) Sale to eligible purchaser.--
                          (i) Subject to clauses (ii) and (iii) 
                        and the consent requirements of 
                        paragraph (2)(D), the Secretary shall, 
                        after providing notice to owners under 
                        subparagraph (H), including the time 
                        and place of sale or for receiving 
                        sealed bids, at public auction or by 
                        sealed bid (whichever of such methods 
                        of sale the Secretary determines to be 
                        more appropriate under the 
                        circumstances) sell the parcel of land 
                        by competitive bid for not less than 
                        the final appraised fair market value 
                        to the highest bidder from among the 
                        following eligible bidders:
                                  (I) The Indian tribe, if any, 
                                with jurisdiction over the 
                                trust or restricted interests 
                                in the parcel being sold.
                                  (II) Any person who is a 
                                member, or is eligible to be a 
                                member, of the Indian tribe 
                                described in subclause (I).
                                  (III) Any person who is a 
                                member, or is eligible to be a 
                                member, of an Indian tribe but 
                                not of the tribe described in 
                                subclause (I), but only if such 
                                person already owns an 
                                undivided interest in the 
                                parcel at the time of sale.
                                  (IV) Any lineal descendent of 
                                the original allottee of the 
                                parcel who is a member or is 
                                eligible to be a member of an 
                                Indian tribe or, with respect 
                                to a parcel located in the 
                                State of California that is not 
                                within an Indian tribe's 
                                reservation or not otherwise 
                                subject to the jurisdiction of 
                                an Indian tribe, who is a 
                                member, or eligible to be a 
                                member, of an Indian tribe or 
                                owns a trust or restricted 
                                interest in the parcel.
                          (ii) Right to match highest bid.--If 
                        the highest bidder is a person who is 
                        only eligible to bid under clause 
                        (i)(III), the Indian tribe that has 
                        jurisdiction over the parcel, if any, 
                        shall have the right to match the 
                        highest bid and acquire the parcel, but 
                        only if--
                                  (I) prior to the date of the 
                                sale, the governing body of 
                                such tribe has adopted a tribal 
                                law or resolution reserving its 
                                right to match the bids of such 
                                nonmember bidders in partition 
                                sales under this subsection and 
                                delivered a copy of such law or 
                                resolution to the Secretary; 
                                and
                                  (II) the parcel is not 
                                acquired under clause (iii).
                          (iii) Right to purchase.--Any person 
                        who is a member, or eligible to be a 
                        member, of the Indian tribe with 
                        jurisdiction over the trust or 
                        restricted interests in the parcel 
                        being sold and is, as of the time of 
                        sale under this subparagraph, the owner 
                        of the largest undivided interest in 
                        the parcel shall have a right to 
                        purchase the parcel by tendering to the 
                        Secretary an amount equal to the 
                        highest sufficient bid submitted at the 
                        sale, less that amount of the bid 
                        attributable to such owner's share, but 
                        only if--
                                  (I) the owner submitted a 
                                sufficient bid at the sale;
                                  (II) the owner's total 
                                undivided interest in the 
                                parcel immediately prior to the 
                                sale was--
                                          (aa) greater than the 
                                        undivided interest held 
                                        by any other co-owners, 
                                        except where there are 
                                        2 or more co-owners 
                                        whose interests are of 
                                        equal size but larger 
                                        than the interests of 
                                        all other co-owners and 
                                        such owners of the 
                                        largest interests have 
                                        agreed in writing that 
                                        1 of them may exercise 
                                        the right of purchase 
                                        under this clause; and
                                          (bb) equal to or 
                                        greater than 20 percent 
                                        of the entire undivided 
                                        ownership of the 
                                        parcel;
                                  (III) within 3 days following 
                                the date of the auction or for 
                                receiving sealed bids, and in 
                                accordance with the regulations 
                                adopted to implement this 
                                section, the owner delivers to 
                                the Secretary a written notice 
                                of intent to exercise the 
                                owner's rights under this 
                                clause; and
                                  (IV) such owner tenders the 
                                amount of the purchase price 
                                required under this clause--
                                          (aa) not less than 30 
                                        days after the date of 
                                        the auction or time for 
                                        receiving sealed bids; 
                                        and
                                          (bb) in accordance 
                                        with any requirements 
                                        of the regulations 
                                        promulgated to 
                                        implement this section.
                          (iv) Any purchaser of a parcel of 
                        land under this paragraph shall acquire 
                        title to the parcel in trust or 
                        restricted status, free and clear of 
                        any and all claims of title or 
                        ownership of all persons or entities 
                        (not including the United States) 
                        owning or claiming to own an interest 
                        in such parcel prior to the time of 
                        sale.
                  (J) Proceeds of sale.--
                          (i) Subject to clauses (ii) and 
                        (iii), the Secretary shall distribute 
                        the proceeds of sale of a parcel of 
                        land under the provisions of this 
                        section to the owners of interests in 
                        such parcel in proportion to their 
                        respective ownership interests.
                          (ii) Proceeds attributable to the 
                        sale of trust or restricted interests 
                        shall be maintained in accounts as 
                        trust personalty.
                          (iii) Proceeds attributable to the 
                        sale of interests of owners whose 
                        whereabouts are unknown, of 
                        undetermined heirs, and of other 
                        persons whose ownership interests have 
                        not been recorded shall be held by the 
                        Secretary until such owners, heirs, or 
                        other persons have been determined, at 
                        which time such proceeds shall be 
                        distributed in accordance with clauses 
                        (i) and (ii).
                  (K) Lack of bids or consent.--
                          (i) Lack of bids.--If no bidder 
                        described in subparagraph (I) presents 
                        a bid that equals or exceeds the final 
                        appraised value, the Secretary may 
                        either purchase the parcel of land for 
                        its appraised fair market value on 
                        behalf of the Indian tribe with 
                        jurisdiction over the land, subject to 
                        the lien and procedures provided under 
                        section 214(b) (25 U.S.C. 2213(b)), or 
                        terminate the partition process.
                          (ii) Lack of consent.--If an 
                        applicant fails to obtain any 
                        applicable consent required under the 
                        provisions of subparagraph (D) by the 
                        date established by the Secretary prior 
                        to the proposed sale, the Secretary may 
                        either extend the time for obtaining 
                        any such consent or deny the request 
                        for partition.
          (3) Enforcement.--
                  (A) In general.--If a partition is approved 
                under this subsection and an owner of an 
                interest in the parcel of land refuses to 
                surrender possession in accordance with the 
                partition decision, or refuses to execute any 
                conveyance necessary to implement the 
                partition, then any affected owner or the 
                United States may--
                          (i) commence a civil action in the 
                        United States district court for the 
                        district in which the parcel of land is 
                        located; and
                          (ii) request that the court issue an 
                        order for ejectment or any other 
                        appropriate remedy necessary for the 
                        partition of the land by sale.
                  (B) Federal role.--With respect to any civil 
                action brought under subparagraph (A)--
                          (i) the United States--
                                  (I) shall receive notice of 
                                the civil action; and
                                  (II) may be a party to the 
                                civil action; and
                          (ii) the civil action shall not be 
                        dismissed, and no relief requested 
                        shall be denied, on the ground that the 
                        civil action is against the United 
                        States or that the United States is a 
                        necessary and indispensable party.
          (4) Grants and loans.--The Secretary may provide 
        grants and low interest loans to successful bidders at 
        sales authorized by this subsection, provided that--
                  (A) the total amount of such assistance in 
                any such sale shall not exceed 20 percent of 
                the appraised value of the parcel of land sold; 
                and
                  (B) the grant or loan funds provided shall 
                only be applied toward the purchase price of 
                the parcel of land sold.
          (5) Regulations.--The Secretary is authorized to 
        adopt such regulations as may be necessary to implement 
        the provisions of this subsection. Such regulations 
        shall include provisions for giving notice of sales to 
        prospective purchasers eligible to submit bids at sales 
        conducted under paragraph (2)(I).

                             25 U.S.C. 2205


Sec. 2205. Tribal probate codes; acquisitions of fractional interests 
                    by tribes

    (a) Tribal Probate Codes.--
          (1) In general.--

           *       *       *       *       *       *       *

          [(3) Limitations.--The Secretary shall not approve a 
        tribal probate code if such code prevents an Indian 
        person from inheriting an interest in an allotment that 
        was originally allotted to his or her lineal ancestor.]
          (3) Tribal probate codes.-- Except as provided in any 
        applicable Federal law, the Secretary shall not approve 
        a tribal probate code, or an amendment to such a code, 
        that prohibits the devise of an interest in trust or 
        restricted land to--
                  (A) an Indian lineal descendant of the 
                original allotee; or
                  (B) an Indian who is not a member of the 
                Indian tribe with jurisdiction over such an 
                interest;
          unless the code provides for--
                          (i) the renouncing of interests to 
                        eligible devisees in accordance with 
                        the code;
                          (ii) the opportunity for a devisee 
                        who is a spouse or lineal descendant of 
                        the testator to reserve a life estate 
                        without regard to waste; and
                          (iii) payment of fair market value in 
                        the manner prescribed under subsection 
                        (c)(2).

           *       *       *       *       *       *       *

    (c) Authority Available to Indian Tribes.--
          [(1) In general] (1) Authority._
                  (A) In general._If the owner of an interest 
                in trust or restricted land devises an interest 
                in such land to a non-Indian under [section 
                207(a)(6)(A) of this title] section 
                207(b)(2)(A)(ii) of this title, the Indian 
                tribe that exercises jurisdiction over the 
                parcel of land involved may acquire such 
                interest by paying to the Secretary the fair 
                market value of such interest, as determined by 
                the Secretary on the date of the decedent's 
                death. [The Secretary shall transfer such 
                payment to the devisee.]
                  (B) Transfer.--The Secretary shall transfer 
                payments received under subparagraph (A) to any 
                person or person who would have received an 
                interest in land if the interest had not been 
                acquired by the Indian tribe in accordance with 
                this paragraph.
          (2) Limitation.--
                  [(A) In general.--Paragraph (1) shall not 
                apply] (A) Inapplicability to certain 
                interests._
                          (i) In general._Paragraph (1) shall 
                        not apply to an interest in trust or 
                        restricted land [if, while] if--
                                  (I) while the decedent's 
                                estate is pending before the 
                                Secretary, the non-Indian 
                                devisee renounces the interest 
                                in favor of an Indian 
                                person[.]; or
                                  (II)--
                                          (aa) the interest is 
                                        part of a family farm 
                                        that is devised to a 
                                        member of the family of 
                                        the decedent; and
                                          (bb) the devisee 
                                        agrees that the Indian 
                                        tribe with jurisdiction 
                                        over the land will have 
                                        the opportunity to 
                                        acquire the interest 
                                        for fair market value 
                                        if the interest is 
                                        offered for sale to a 
                                        person or entity that 
                                        is not a member of the 
                                        family of the owner of 
                                        the land.
                          (ii) Recording of interest.--On 
                        request by the Indian tribe described 
                        in clause (i)(II)(bb), a restriction 
                        relating to the acquisition by the 
                        Indian tribe of an interest in a family 
                        farm involved shall be recorded as part 
                        of the deed relating to the interest 
                        involved.
                          (iii) Mortgage and foreclosure.--
                        Nothing in clause (i)(II) prevents or 
                        limits the ability of an owner of land 
                        to which that clause applies to 
                        mortgage the land or limits the right 
                        of the entity holding such a mortgage 
                        to foreclose or otherwise enforce such 
                        a mortgage agreement in accordance with 
                        applicable law.
                          (iv) Definition of ``member of the 
                        family''.--In this paragraph, the term 
                        ``member of the family'', with respect 
                        to a decedent or landowner, means--
                                  (I) a lineal descendant of a 
                                decedent or landowner;
                                  (II) a lineal descendant of 
                                the grandparent of a decedent 
                                or landowner;
                                  (III) the spouse of a 
                                descendant or landowner 
                                described in subclause (I) or 
                                (II); and
                                  (IV) the spouse of a decedent 
                                or landowner.
                  (B) Reservation of life estate.--A non-Indian 
                devisee described in [subparagraph (A) or a 
                non-Indian devisee described in Section 
                2206(a)(6)(B) of this title] paragraph (1), may 
                retain a life estate in the interest involved, 
                including a life estate to the revenue produced 
                from the interest. The amount of any payment 
                required under paragraph (1) shall be reduced 
                to reflect the value of any life estate 
                reserved by a non-Indian devisee under this 
                subparagraph.

                             25 U.S.C. 2206


Sec. 2206. Descent and distribution

    [(a) Testamentary Disposition.--
          [(1) In general.--Interests in trust or restricted 
        land may be devised only to--
                  [(A) the decedent's Indian spouse or any 
                other Indian person; or
                  [(B) the Indian tribe with jurisdiction over 
                the land so devised.
          [(2) Life estate.--Any devise of an interest in trust 
        or restricted land to a non-Indian shall create a life 
        estate with respect to such interest.
          [(3) Remainder.--
                  [(A) In general.--Except where the remainder 
                from the life estate referred to in paragraph 
                (2) is devised to an Indian, such remainder 
                shall descend to the decedent's Indian spouse 
                or Indian heirs of the first or second degree 
                pursuant to the applicable law of intestate 
                succession.
                  [(B) Descent of interests.--If a decedent 
                described in subparagraph (A) has no Indian 
                heirs of the first or second degree, the 
                remainder interest described in such 
                subparagraph shall descend to any of the 
                decedent's collateral heirs of the first or 
                second degree, pursuant to the applicable laws 
                of intestate succession, if on the date of the 
                decedent's death, such heirs were a co-owner of 
                an interest in the parcel of trust or 
                restricted land involved.
                  [(C) Definition.--For purposes of this 
                section, the term ``collateral heirs of the 
                first or second degree'' means the brothers, 
                sisters, aunts, uncles, nieces, nephews, and 
                first cousins, of a decedent.
          [(4) Descent to tribe.--If the remainder interest 
        described in paragraph (3)(A) does not descend to an 
        Indian heir or heirs it shall descend to the Indian 
        tribe that exercises jurisdiction over the parcel of 
        trust or restricted lands involved, subject to 
        paragraph (5).
          [(5) Acquisition of interest by indian co-owners.--An 
        Indian co-owner of a parcel of trust or restricted land 
        may prevent the descent of an interest in Indian land 
        to an Indian tribe under paragraph (4) by paying into 
        the decedent's estate the fair market value of the 
        interest in such land. If more than 1 Indian co-owner 
        offers to pay for such an interest, the highest bidder 
        shall obtain the interest. If payment is not received 
        before the close of the probate of the decedent's 
        estate, the interest shall descend to the tribe that 
        exercises jurisdiction over the parcel.
          [(6) Special rule.--
                  [(A) In general.--Notwithstanding paragraph 
                (2), an owner of trust or restricted land who 
                does not have an Indian spouse, Indian lineal 
                descendant, an Indian heir of the first or 
                second degree, or an Indian collateral heir of 
                the first or second degree, may devise his or 
                her interests in such land to any of the 
                decedent's heirs of the first or second degree 
                or collateral heirs of the first or second 
                degree.
                  [(B) Acquisition of interest by tribe.--An 
                Indian tribe that exercises jurisdiction over 
                an interest in trust or restricted land 
                described in subparagraph (A) may acquire any 
                interest devised to a non-Indian as provided 
                for in section 206(c).
    [(b) Intestate Succession.--
          [(1) In general.--An interest in trust or restricted 
        land shall pass by intestate succession only to a 
        decedent's spouse or heirs of the first or second 
        degree, pursuant to the applicable law of intestate 
        succession.
          [(2) Life estate.--Notwithstanding paragraph (1), 
        with respect to land described in such paragraph, a 
        non-Indian spouse or non-Indian heirs of the first or 
        second degree shall only receive a life estate in such 
        land.
          [(3) Descent of interests.--If a decedent described 
        in paragraph (1) has no Indian heirs of the first or 
        second degree, the remainder interest from the life 
        estate referred to in paragraph (2) shall descend to 
        any of the decedent's collateral Indian heirs of the 
        first or second degree, pursuant to the applicable laws 
        of intestate succession, if on the date of the 
        decedent's death, such heirs were a co-owner of an 
        interest in the parcel of trust or restricted land 
        involved.
          [(4) Descent to tribe.--If the remainder interest 
        described in paragraph (3) does not descend to an 
        Indian heir or heirs it shall descend to the Indian 
        tribe that exercises jurisdiction over the parcel of 
        trust or restricted lands involved, subject to 
        paragraph (5).
          [(5) Acquisition of interest by indian co-owners.--An 
        Indian co-owner of a parcel of trust or restricted land 
        may prevent the descent of an interest in such land for 
        which there is no heir of the first or second degree by 
        paying into the decedent's estate the fair market value 
        of the interest in such land. If more than 1 Indian co-
        owner makes an offer to pay for such an interest, the 
        highest bidder shall obtain the interest. If no such 
        offer is made, the interest shall descend to the Indian 
        tribe that exercises jurisdiction over the parcel of 
        land involved.
    [(c) Joint Tenancy; Right of Survivorship.--
          [(1) Testate.--If a testator devises interests in the 
        same parcel of trust or restricted lands to more than 1 
        person, in the absence of express language in the 
        devise to the contrary, the devise shall be presumed to 
        create joint tenancy with the right of survivorship in 
        the land involved.
          [(2) Intestate.--
                  [(A) In general.--Any interest in trust or 
                restricted land that--
                          [(i) passes by intestate succession 
                        to more than 1 person, including a 
                        remainder interest under subsection (a) 
                        or (b) of section 207; and
                          [(ii) that constitutes 5 percent or 
                        more of the undivided interest in a 
                        parcel of trust or restricted land;
                shall be held as tenancy in common.
                  [(B) Limited interest.--Any interest in trust 
                or restricted land that--
                          [(i) passes by intestate succession 
                        to more than 1 person, including a 
                        remainder interest under subsection (a) 
                        or (b) of section 207; and 46
                          [(ii) that constitutes less than 5 
                        percent of the undivided interest in a 
                        parcel of trust or restricted land;
                shall be held by such heirs with the right of 
                survivorship.
          [(3) Effective date.--
                  [(A) In general.--This subsection (other than 
                subparagraph (B)) shall become effective on the 
                later of--
                          [(i) the date referred to in 
                        subsection (g)(5); or
                          [(ii) the date that is six months 
                        after the date on which the Secretary 
                        makes the certification required under 
                        subparagraph (B).
                  [(B) Certification.---Upon a determination by 
                the Secretary that the Department of the 
                Interior has the capacity, including policies 
                and procedures, to track and manage interests 
                in trust or restricted land held with the right 
                of survivorship, the Secretary shall certify 
                such determination and publish such 
                certification in the Federal Register.]
    (a) Nontestamentary Disposition.--
          (1) Rules of descent.--Subject to any applicable 
        Federal law relating to the devise or descent of trust 
        or restricted property, any trust or restricted 
        interest in land or interest in trust personalty that 
        is not disposed of by a valid will--
                  (A) shall descend according to an applicable 
                tribal probate code approved in accordance with 
                section 206; or
                  (B) in the case of a trust or restricted 
                interest in land or interest in trust 
                personalty to which a tribal probate code does 
                not apply, shall descend in accordance with--
                          (i) paragraphs (2) through (5); and
                          (ii) other applicable Federal law.
        (2) Rules governing descent of estate.--
                  (A) Surviving spouse.--If there is a 
                surviving spouse of the decedent, such spouse 
                shall receive trust and restricted land and 
                trust personalty in the estate as follows:
                          (i) If the decedent is survived by 
                        one or more eligible heirs described in 
                        subparagraph (B) (i), (ii), (iii), or 
                        (iv), the surviving spouse shall 
                        receive \1/3\ of the trust personalty 
                        of the decedent and a life estate 
                        without regard to waste in the 
                        interests in trust or restricted lands 
                        of the decedent.
                          (ii) If there are no eligible heirs 
                        described in subparagraph (B) (i), 
                        (ii), (iii), or (iv), the surviving 
                        spouse shall receive all of the trust 
                        personalty of the decedent and a life 
                        estate without regard to waste in the 
                        trust or restricted lands of the 
                        decedent.
                          (iii) The remainder shall pass as set 
                        forth in subparagraph (B).
                          (iv) Trust personalty passing to a 
                        surviving spouse under the provisions 
                        of this subparagraph shall be 
                        maintained by the Secretary in an 
                        account as trust personalty, but only 
                        if such spouse is Indian.
                  (B) Individual and tribal heirs.--Where there 
                is no surviving spouse of the decedent, or 
                there is a remainder interest pursuant to 
                subparagraph (A), the trust or restricted 
                estate or such remainder shall, subject to 
                subparagraphs (A) and (D), pass as follows:
                          (i) To those of the decedent's 
                        children who are eligible heirs (or if 
                        1 or more of such children do not 
                        survive the decedent, the children of 
                        any such deceased child who are 
                        eligible heirs, by right of 
                        representation, but only if such 
                        children of the deceased child survive 
                        the decedent) in equal shares.
                          (ii) If the property does not pass 
                        under clause (i), to those of the 
                        decedent's surviving great-
                        grandchildren who are eligible heirs, 
                        in equal shares.
                          (iii) If the property does not pass 
                        under clause (i) or (ii), to the 
                        decedent's parent who is an eligible 
                        heir, and if both parents survive the 
                        decedent and are both eligible heirs, 
                        to both parents in equal shares.
                          (iv) If the property does not pass 
                        under clause (i), (ii), or (iii), to 
                        those of the decedent's surviving 
                        siblings who are eligible heirs, in 
                        equal shares.
                          (v) If the property does not pass 
                        under clause (i), (ii), (iii), or (iv), 
                        to the Indian tribe with jurisdiction 
                        over the interests in trust or 
                        restricted lands;
                except that notwithstanding clause (v), an 
                Indian co-owner (including the Indian tribe 
                referred to in clause (v)) of a parcel of trust 
                or restricted land may acquire an interest that 
                would otherwise descend under that clause by 
                paying into the estate of the decedent, before 
                the close of the probate of the estate, the 
                fair market value of the interest in the land; 
                if more than 1 Indian co-owner offers to pay 
                for such interest, the highest bidder shall 
                acquire the interest.
                  (C) No indian tribe.--
                          (i) In general.--If there is no 
                        Indian tribe with jurisdiction over the 
                        interests in trust or restricted lands 
                        that would otherwise descend under 
                        subparagraph (B)(v), then such 
                        interests shall be divided equally 
                        among co-owners of trust or restricted 
                        interests in the parcel; if there are 
                        no such co-owners, then to the United 
                        States, provided that any such 
                        interests in land passing to the United 
                        States under this subparagraph shall be 
                        sold by the Secretary and the proceeds 
                        from such sale deposited into the land 
                        acquisition fund established under 
                        section 216 (25 U.S.C. 2215) and used 
                        for the purposes described in 
                        subsection (b) of that section.
                          (ii) Contiguous parcel.--If the 
                        interests passing to the United States 
                        under this subparagraph are in a parcel 
                        of land that is contiguous to another 
                        parcel of trust or restricted land, the 
                        Secretary shall give the owners of the 
                        trust or restricted interest in the 
                        contiguous parcel the first opportunity 
                        to purchase the interest at not less 
                        than fair market value determined in 
                        accordance with this Act. If more than 
                        1 such owner in the contiguous parcel 
                        request to purchase the parcel, the 
                        Secretary shall sell the parcel by 
                        public auction or sealed bid (as 
                        determined by the Secretary) at not 
                        less than fair market value to the 
                        owner of a trust or restricted interest 
                        in the contiguous parcel submitting the 
                        highest bid.
                  (D) Intestate descent of small fractional 
                interests in land.--
                          (i) General rule.--Notwithstanding 
                        subparagraphs (A) and (B), and subject 
                        to any applicable Federal law, any 
                        trust or restricted interest in land in 
                        the decedent's estate that is not 
                        disposed of by a valid will and 
                        represents less than 5 percent of the 
                        entire undivided ownership of the 
                        parcel of land of which such interest 
                        is a part, as evidenced by the 
                        decedent's estate inventory at the time 
                        of the heirship determination, shall 
                        descend in accordance with clauses (ii) 
                        through (iv).
                          (ii) Surviving spouse.--If there is a 
                        surviving spouse, and such spouse was 
                        residing on a parcel of land described 
                        in clause (i) at the time of the 
                        decendent's death, the spouse shall 
                        receive a life estate without regard to 
                        waste in the decedent's trust or 
                        restricted interest in only such 
                        parcel, and the remainder interest in 
                        that parcel shall pass in accordance 
                        with clause (iii).
                          (iii) Single heir rule.--Where there 
                        is no life estate created under clause 
                        (ii) or there is a remainder interest 
                        under that clause, the trust or 
                        restricted interest or remainder 
                        interest that is subject to this 
                        subparagraph shall descend, in trust or 
                        restricted status, to--
                                  (I) the decedent's surviving 
                                child, but only if such child 
                                is an eligible heir; and if 2 
                                or more surviving children are 
                                eligible heirs, then to the 
                                oldest of such children;
                                  (II) if the interest does not 
                                pass under subclause (I), the 
                                decedent's surviving 
                                grandchild, but only if such 
                                grandchild is an eligible heir; 
                                and if 2 or more surviving 
                                grandchildren are eligible 
                                heirs, then to the oldest of 
                                such grandchildren;
                                  (III) if the interest does 
                                not pass under subclause (I) or 
                                (II), the decedent's surviving 
                                great grandchild, but only if 
                                such great grandchild is an 
                                eligible heir; and if 2 or more 
                                surviving great grandchildren 
                                are eligible heirs, then to the 
                                oldest of such great 
                                grandchildren;
                                  (IV) if the interest does not 
                                pass under subclause (I), (II), 
                                or (III), the Indian tribe with 
                                jurisdiction over the interest; 
                                or
                                  (V) if the interest does not 
                                pass under subclause (I), (II), 
                                or (III), and there is no such 
                                Indian tribe to inherit the 
                                property under subclause (IV), 
                                the interest shall be divided 
                                equally among co-owners of 
                                trust or restricted interests 
                                in the parcel; and if there are 
                                no such co-owners, then to the 
                                United States, to be sold, and 
                                the proceeds from the sale 
                                used, in the same manner 
                                provided in subparagraph (C).
                        The determination of which person is 
                        the oldest eligible heir for 
                        inheritance purposes under this clause 
                        shall be made by the Secretary in the 
                        decedent's probate proceeding and shall 
                        be consistent with the provisions of 
                        this Act.
                          (iv) Exceptions.--Notwithstanding 
                        clause (iii)--
                                  (I)(aa) the heir of an 
                                interest under clause (iii), 
                                unless the heir is a minor or 
                                incompetent person, may agree 
                                in writing entered into the 
                                record of the decedent's 
                                probate proceeding to renounce 
                                such interest, in trust or 
                                restricted status, in favor 
                                of--
                                          (AA) any other 
                                        eligible heir or Indian 
                                        person related to the 
                                        heir by blood, but in 
                                        any case never in favor 
                                        of more than 1 such 
                                        heir or person;
                                          (BB) any co-owner of 
                                        another trust or 
                                        restricted interest in 
                                        such parcel of land; or
                                          (CC) the Indian tribe 
                                        with jurisdiction over 
                                        the interest, if any; 
                                        and
                                  (bb) the Secretary shall give 
                                effect to such agreement in the 
                                distribution of the interest in 
                                the probate proceeding; and
                                  (II) the governing body of 
                                the Indian tribe with 
                                jurisdiction over an interest 
                                in trust or restricted land 
                                that is subject to the 
                                provisions of this subparagraph 
                                may adopt a rule of intestate 
                                descent applicable to such 
                                interest that differs from the 
                                order of descent set forth in 
                                clause (iii). The Secretary 
                                shall apply such rule to the 
                                interest in distributing the 
                                decedent's estate, but only 
                                if--
                                          (aa) a copy of the 
                                        tribal rule is 
                                        delivered to the 
                                        official designated by 
                                        the Secretary to 
                                        receive copies of 
                                        tribal rules for 
                                        purposes of this 
                                        clause;
                                          (bb) the tribal rule 
                                        provides for the 
                                        intestate inheritance 
                                        of such interest by no 
                                        more than 1 heir, so 
                                        that the interest does 
                                        not further 
                                        fractionate;
                                          (cc) the tribal rule 
                                        does apply to any 
                                        interest disposed of by 
                                        a valid will;
                                          (dd) the decedent 
                                        died on or after the 
                                        date described in 
                                        subsection (b) of 
                                        section 8 of the 
                                        American Indian Probate 
                                        Reform Act of 2004, or 
                                        on or after the date on 
                                        which a copy of the 
                                        tribal rule was 
                                        delivered to the 
                                        Secretary pursuant to 
                                        item (aa), whichever is 
                                        later; and
                                          (ee) the Secretary 
                                        does not make a 
                                        determination within 90 
                                        days after a copy of 
                                        the tribal rule is 
                                        delivered pursuant to 
                                        item (aa) that the rule 
                                        would be unreasonably 
                                        difficult to administer 
                                        or does not conform 
                                        with the requirements 
                                        in items (bb) or (cc).
                          (v) Rule of construction.--This 
                        subparagraph shall not be construed to 
                        limit a person's right to devise any 
                        trust or restricted interest by way of 
                        a valid will in accordance with 
                        subsection (b).
          (3) Right of representation.--If, under this 
        subsection, all or any part of the estate of a decedent 
        is to pass to children of a deceased child by right of 
        representation, that part is to be divided into as many 
        equal shares as there are living children of the 
        decedent and predeceased children who left issue who 
        survive the decedent. Each living child of the 
        decedent, if any, shall receive 1 share, and the share 
        of each pre-deceased child shall be divided equally 
        among the pre-deceased child's children.
          (4) Special rule relating to survival.--In the case 
        of intestate succession under this subsection, if an 
        individual fails to survive the decedent by at least 
        120 hours, as established by clear and convincing 
        evidence--
                  (A) the individual shall be deemed to have 
                predeceased the decedent for the purpose of 
                intestate succession; and
                  (B) the heirs of the decedent shall be 
                determined in accordance with this section.
          (5) Status of inherited interests.--Except as 
        provided in paragraphs (2)(A) and (D) regarding the 
        life estate of a surviving spouse, a trust or 
        restricted interest in land or trust personalty that 
        descends under the provisions of this subsection shall 
        vest in the heir in the same trust or restricted status 
        as such interest was held immediately prior to the 
        decedent's death.
    (b) Testamentary Disposition.--
          (1) General devise of an interest in trust or 
        restricted land.--
                  (A) In general.--Subject to any applicable 
                Federal law relating to the devise or descent 
                of trust or restricted land, or a tribal 
                probate code approved by the Secretary in 
                accordance with section 206, the owner of a 
                trust or restricted interest in land may devise 
                such interest to--
                          (i) any lineal descendant of the 
                        testator;
                          (ii) any person who owns a 
                        preexisting undivided trust or 
                        restricted interest in the same parcel 
                        of land;
                          (iii) the Indian tribe with 
                        jurisdiction over the interest in land, 
                        or
                          (iv) any Indian;
                in trust or restricted status.
                  (B) Rules of interpretation.--Any devise of a 
                trust or restricted interest in land pursuant 
                to subparagraph (A) to an Indian or the Indian 
                tribe with jurisdiction over the interest shall 
                be deemed to be a devise of the interest in 
                trust or restricted status. Any devise of a 
                trust or restricted interest in land to a 
                person who is only eligible to be a devisee 
                under clause (i) or (ii) of subparagraph (A) 
                shall be presumed to be a devise of the 
                interest in trust or restricted status unless 
                language in such devise clearly evidences an 
                intent on the part of the testator that the 
                interest is to pass as a life estate or fee 
                interest in accordance with paragraph (2)(A).
          (2) Devise of trust or restricted land as a life 
        estate or in fee.--
                  (A) In general.--Except as provided under any 
                applicable Federal law, any trust or restricted 
                interest in land that is not devised in 
                accordance with paragraph (1)(A) may be devised 
                only--
                          (i) as a life estate to any person, 
                        with the remainder being devised only 
                        in accordance with subparagraph (B) or 
                        paragraph (1); or
                          (ii) except as provided in 
                        subparagraph (B), as a fee interest 
                        without Federal restrictions against 
                        alienation to any person who is not 
                        eligible to be a devisee under clause 
                        (iv) of paragraph (1)(A).
                  (B) Indian reorganization act lands.--Any 
                interest in trust or restricted land that is 
                subject to section 4 of the Act of June 18, 
                1934 (25 U.S.C. 464), may be devised only in 
                accordance with--
                          (i) that section;
                          (ii) subparagraph (A)(i); or
                          (iii) paragraph (1)(A);
                provided that nothing in this section or in 
                section 4 of the Act of June 18, 1934 (25 
                U.S.C. 464), shall be construed to authorize 
                the devise of any interest in trust or 
                restricted land that is subject to section 4 of 
                that Act to any person as a fee interest under 
                subparagraph (A)(ii).
          (3) General devise of an interest in trust 
        personalty.--
                  (A) Trust personalty defined.--The term 
                ``trust personalty'' as used in this section 
                includes all funds and securities of any kind 
                which are held in trust in an individual Indian 
                money account or otherwise supervised by the 
                Secretary.
                  (B) In general.--Subject to any applicable 
                Federal law relating to the devise or descent 
                of such trust personalty, or a tribal probate 
                code approved by the Secretary in accordance 
                with section 206, the owner of an interest in 
                trust personalty may devise such an interest to 
                any person or entity.
                  (C) Maintenance as trust personalty.--In the 
                case of a devise of an interest in trust 
                personalty to a person or Indian tribe eligible 
                to be a devisee under paragraph (1)(A), the 
                Secretary shall maintain and continue to manage 
                such interests as trust personalty.
                  (D) Direct disbursement and distribution.--In 
                the case of a devise of an interest in trust 
                personalty to a person or Indian tribe not 
                eligible to be a devisee under paragraph 
                (1)(A), the Secretary shall directly disburse 
                and distribute such personalty to the devisee.
          (4) Invalid devises and wills.--
                  (A) Land.--Any trust or restricted interest 
                in land that is not devised in accordance with 
                paragraph (1) or (2) or that is not disposed of 
                by a valid will shall descend in accordance 
                with the applicable law of intestate succession 
                as provided for in subsection (a).
                  (B) Personalty.--Any trust personalty that is 
                not disposed of by a valid will shall descend 
                in accordance with the applicable law of 
                intestate succession as provided for in 
                subsection (a).
    (c) Joint Tenancy; Right of Survivorship.--
          (1) Presumption of joint tenancy.--If a testator 
        devises trust or restricted interests in the same 
        parcel of land to more than 1 person, in the absence of 
        clear and express language in the devise stating that 
        the interest is to pass to the devisees as tenants in 
        common, the devise shall be presumed to create a 
        jointenancy with the right of survivorship in the 
        interests involved.
          (2) Exception.--Paragraph (1) shall not apply to any 
        devise of an interest in trust or restricted land where 
        the will in which such devise is made was executed 
        prior to the date that is 1 year after the date on 
        which the Secretary publishes the certification 
        required by section (8)(a)(4) of the American Indian 
        Probate Reform Act of 2004.

           *       *       *       *       *       *       *

    (f) Estate Planning Assistance.--
          [(1) In general.--The Secretary shall provide estate 
        planning assistance in accordance with this subsection, 
        to the extent amounts are appropriated for such 
        purpose.]
          (1) In general.--
                  (A) The activities conducted under this 
                subsection shall be conducted in accordance 
                with any applicable--
                          (i) tribal probate code; or
                          (ii) tribal land consolidation plan.
                  (B) The Secretary shall provide estate 
                planning assistance in accordance with this 
                subsection, to the extent amounts are 
                appropriated for such purpose.
          (2) Requirements.--The estate planning assistance 
        provided under paragraph (1) shall be designed to--
                  (A) inform, advise, and assist Indian 
                landowners with respect to estate planning in 
                order to facilitate the transfer of trust or 
                restricted lands to a devisee or devisees 
                selected by the landowners; [and]
                  (B) dramatically increase the use of wills 
                and other methods of devise among Indian 
                landowners;
                  (C) substantially reduce the quantity and 
                complexity of Indian estates that pass 
                intestate through the probate process, while 
                protecting the rights and interests of Indian 
                landowners; and
                  [(B)] (D) assist Indian landowners in 
                accessing information pursuant to section 
                217(e).
          [(3) Contracts.--In carrying out this section, the 
        Secretary may enter into contracts with entities that 
        have expertise in Indian estate planning and tribal 
        probate codes.]
          (3) Probate code development and legal assistance 
        grants.--In carrying out this section, the Secretary 
        may award grants to--
                  (A) Indian tribes, for purposes of tribal 
                probate code development and estate planning 
                services to tribal members; and
                  (B) organizations that provide legal 
                assistance services for Indian tribes, Indian 
                organizations, and individual owners of 
                interests in trust or restricted lands that are 
                qualified as nonprofit organizations under 
                section 501(c)(3) of the Internal Revenue Code 
                of 1986 and provide such services pursuant to 
                Federal poverty guidelines, for purposes of 
                providing civil legal assistance to such Indian 
                tribes, individual owners, and Indian 
                organizations for the development of tribal 
                probate codes, for estate planning services or 
                for other purposes consistent with the services 
                they provide to Indians and Indian tribes; and
                  (C) in specific areas and reservations where 
                qualified nonprofit organizations referred to 
                in subparagraph (B) do not provide such legal 
                assistance to Indian tribes, Indian 
                organizations, or individual owners of trust or 
                restricted land, to other providers of such 
                legal assistance;
        that submit an application to the Secretary, in such 
        form and manner as the Secretary may prescribe.
          (4) Authorization for appropriations.--There is 
        authorized to be appropriated such sums as may be 
        necessary to carry out the provisions of paragraph (3).
    [(g) Notification to Indian Tribes and Owners of Trust or 
Restricted Lands.--
          [(1) In general.--Not later than 180 days after the 
        date of enactment of the Indian Land Consolidation Act 
        Amendments of 2000, the Secretary shall notify Indian 
        tribes and owners of trust or restricted lands of the 
        amendments made by the Indian Land Consolidation Act 
        Amendments of 2000.
          [(2) Specifications.--The notice required under 
        paragraph (1) shall be designed to inform Indian owners 
        of trust or restricted land of--
                  [(A) the effect of this Act, with emphasis on 
                the effect of the provisions of this section, 
                on the testate disposition and intestate 
                descent of their interests in trust or 
                restricted land; and
                  [(B) estate planning options available to the 
                owners, including any opportunities for 
                receiving estate planning assistance or advice.
          [(3) Requirements.--The Secretary shall provide the 
        notice required under paragraph (1)--
                  [(A) by direct mail for those Indians with 
                interests in trust and restricted lands for 
                which the Secretary has an address for the 
                interest holder;
                  [(B) through the Federal Register;
                  [(C) through local newspapers in areas with 
                significant Indian populations, reservation 
                newspapers, and newspapers that are directed at 
                an Indian audience; and
                  [(D) through any other means determined 
                appropriate by the Secretary.
          [(4) Certification.--After providing notice under 
        this subsection, the Secretary shall certify that the 
        requirements of this subsection have been met and shall 
        publish notice of such certification in the Federal 
        Register.
          [(5) Effective date--The provisions of this section 
        shall not apply to the estate of an individual who dies 
        prior to the day that is 365 days after the Secretary 
        makes the certification required under paragraph (4).]
    (h) Applicable Federal Law.--
          (1) In general.--Any references in subsections (a) 
        and (b) to applicable Federal law include--
                  (A) Public Law 91-627 (84 Stat. 1874);
                  (B) Public Law 92-377 (86 Stat. 530);
                  (C) Public Law 92-443 (86 Stat. 744);
                  (D) Public Law 96-274 (94 Stat. 537); and
                  (E) Public Law 98-513 (98 Stat. 2411).
          (2) No effect on laws.--Nothing in this Act amends or 
        otherwise affects the application of any law described 
        in paragraph (1), or any other Federal law that 
        pertains to--
                  (A) trust or restricted land located on 1 or 
                more specific Indian reservations that are 
                expressly identified in such law; or
                  (B) the allotted lands of 1 or more specific 
                Indian tribes that are expressly identified in 
                such law.
    (i) Rules of Interpretation.--In the absence of a contrary 
intent, and except as otherwise provided under this Act, 
applicable Federal law, or a tribal probate code approved by 
the Secretary pursuant to section 206, wills shall be construed 
as to trust and restricted land and trust personalty in 
accordance with the following rules:
          (1) Construction that will passes all property.--A 
        will shall be construed to apply to all trust and 
        restricted land and trust personalty which the testator 
        owned at his death, including any such land or 
        personalty acquired after the execution of his will.
          (2) Class gifts.--
                  (A) No differentiation between relationship 
                by blood and relationship by affinity.--Terms 
                of relationship that do not differentiate 
                relationships by blood from those by affinity, 
                such as ``uncles'', ``aunts'', ``nieces'', or 
                ``nephews'', are construed to exclude relatives 
                by affinity. Terms of relationship that do not 
                differentiate relationships by the half blood 
                from those by the whole blood, such as 
                ``brothers'', ``sisters'', ``nieces'', or 
                ``nephews'', are construed to include both 
                types of relationships.
                  (B) Meaning of ``heirs'' and ``next of kin'', 
                etc.; time of ascertaining class.--A devise of 
                trust or restricted interest in land or an 
                interest in trust personalty to the testator's 
                or another designated person's ``heirs'', 
                ``next of kin'', ``relatives'', or ``family'' 
                shall mean those persons, including the spouse, 
                who would be entitled to take under the 
                provisions of this Act for nontestamentary 
                disposition. The class is to be ascertained as 
                of the date of the testator's death.
                  (C) Time for ascertaining class.--In 
                construing a devise to a class other than a 
                class described in subparagraph (B), the class 
                shall be ascertained as of the time the devise 
                is to take effect in enjoyment. The surviving 
                issue of any member of the class who is then 
                dead shall take by right of representation the 
                share which their deceased ancestor would have 
                taken.
          (3) Meaning of ``die without issue'' and similar 
        phrases.--In any devise under this chapter, the words 
        ``die without issue'', ``die without leaving issue'', 
        ``have no issue'', or words of a similar import shall 
        be construed to mean that an individual had no lineal 
        descendants in his lifetime or at his death, and not 
        that there will be no lineal descendants at some future 
        time.
          (4) Persons born out of wedlock.--In construing 
        provisions of this chapter relating to lapsed and void 
        devises, and in construing a devise to a person or 
        persons described by relationship to the testator or to 
        another, a person born out of wedlock shall be 
        considered the child of the natural mother and also of 
        the natural father.
          (5) Lapsed devises.--Subject to the provisions of 
        subsection (b), where the testator devises or bequeaths 
        a trust or restricted interest in land or trust 
        personalty to the testator's grandparents or to the 
        lineal descendent of a grandparent, and the devisee or 
        legatee dies before the testator leaving lineal 
        descendants, such descendants shall take the interest 
        so devised or bequeathed per stirpes.
          (6) Void devises.--Except as provided in paragraph 
        (5), and if the disposition shall not be otherwise 
        expressly provided for by a tribal probate code 
        approved under section 206 (25 U.S. C. 2205), if a 
        devise other than a residuary devise of a trust or 
        restricted interest in land or trust personalty fails 
        for any reason, such interest shall become part of the 
        residue and pass, subject to the provisions of 
        subsection (b), to the other residuary devisees, if 
        any, in proportion to their respective shares or 
        interests in the residue.
          (7) Family cemetery plot.--If a family cemetery plot 
        owned by the testator at his decease is not mentioned 
        in the decedent's will, the ownership of the plot shall 
        descend to his heirs as if he had died intestate.
    (j) Heirship by killing.--
          (1) Heirship by killing defined.--As used in this 
        subsection, ``heir by killing'' means any person who 
        knowingly participates, either as a principal or as an 
        accessory before the fact, in the willful and unlawful 
        killing of the decedent.
          (2) No acquisition of property by killing.--Subject 
        to any applicable Federal law relating to the devise or 
        descent of trust or restricted land, no heir by killing 
        shall in any way acquire any trust or restricted 
        interests in land or interests in trust personalty as 
        the result of the death of the decedent, but such 
        property shall pass in accordance with this subsection.
          (3) Descent, distribution, and right of 
        survivorship.--The heir by killing shall be deemed to 
        have predeceased the decedent as to decedent's trust or 
        restricted interests in land or trust personalty which 
        would have passed from the decedent or his estate to 
        such heir--
                  (A) under intestate succession under this 
                section;
                  (B) under a tribal probate code, unless 
                otherwise provided for;
                  (C) as the surviving spouse;
                  (D) by devise;
                  (E) as a reversion or a vested remainder;
                  (F) as a survivorship interest; and
                  (G) as a contingent remainder or executory or 
                other future interest.
          (4) Joint tenants, joint owners, and joint 
        obligees.--
                  (A) Any trust or restricted land or trust 
                personalty held by only the heir by killing and 
                the decedent as joint tenants, joint owners, or 
                joint obligees shall pass upon the death of the 
                decedent to his or her estate, as if the heir 
                by killing had predeceased the decedent.
                  (B) As to trust or restricted land or trust 
                personalty held jointly by 3 or more persons, 
                including both the heir by killing and the 
                decedent, any income which would have accrued 
                to the heir by killing as a result of the death 
                of the decedent shall pass to the estate of the 
                decedent as if the heir by killing had 
                predeceased the decedent and any surviving 
                joint tenants.
                  (C) Notwithstanding any other provision of 
                this subsection, the decedent's trust or 
                restricted interest land or trust personalty 
                that is held in a joint tenancy with the right 
                of survivorship shall be severed from the joint 
                tenancy as though the property held in the 
                joint tenancy were to be severed and 
                distributed equally among the joint tenants and 
                the decedent's interest shall pass to his 
                estate; the remainder of the interests shall 
                remain in joint tenancy with right of 
                survivorship among the surviving joint tenants.
          (5) Life estate for the life of another.--If the 
        estate is held by a third person whose possession 
        expires upon the death of the decedent, it shall remain 
        in such person's hands for the period of time following 
        the decedent's death equal to the life expectancy of 
        the decedent but for the killing.
          (6) Preadjudication rule.--
                  (A) In general.--If a person has been 
                charged, whether by indictment, information, or 
                otherwise by the United States, a tribe, or any 
                State, with voluntary manslaughter or homicide 
                in connection with a decedent's death, then any 
                and all trust or restricted land or trust 
                personalty that would otherwise pass to that 
                person from the decedent's estate shall not 
                pass or be distributed by the Secretary until 
                the charges have been resolved in accordance 
                with the provisions of this paragraph.
                  (B) Dismissal or withdrawal.--Upon dismissal 
                or withdrawal of the charge, or upon a verdict 
                of not guilty, such land and personalty shall 
                pass as if no charge had been filed or made.
                  (C) Conviction.--Upon conviction of such 
                person, and the exhaustion of all appeals, if 
                any, the trust and restricted land and trust 
                personalty in the estate shall pass in 
                accordance with this subsection.
          (7) Broad construction; policy of subsection.--This 
        subsection shall not be considered penal in nature, but 
        shall be construed broadly in order to effect the 
        policy that no person shall be allowed to profit by his 
        own wrong, wherever committed.
    (k) General Rules Governing Probate.--
          (1) Scope.--Except as provided under applicable 
        Federal law or a tribal probate code approved under 
        section 206, the provisions of this subsection shall 
        govern the probate of estates containing trust and 
        restricted interests in land or trust personalty.
          (2) Pretermitted spouses and children.--
                  (A) Spouses.--
                          (i) In general.--Except as provided 
                        in clause (ii), if the surviving spouse 
                        of a testator married the testator 
                        after the testator executed the will of 
                        the testator, the surviving spouse 
                        shall receive the intestate share in 
                        the decedent's trust or restricted land 
                        and trust personalty that the spouse 
                        would have received if the testator had 
                        died intestate.
                          (ii) Exception.--Clause (i) shall not 
                        apply to a trust or restricted interest 
                        land where--
                                  (I) the will of a testator is 
                                executed before the date of 
                                enactment of this subparagraph;
                                  (II)(aa) the spouse of a 
                                testator is a non-Indian; and
                                  (bb) the testator devised the 
                                interests in trust or 
                                restricted land of the testator 
                                to 1 or more Indians;
                                  (III) it appears, based on an 
                                examination of the will or 
                                other evidence, that the will 
                                was made in contemplation of 
                                the marriage of the testator to 
                                the surviving spouse;
                                  (IV) the will expresses the 
                                intention that the will is to 
                                be effective notwithstanding 
                                any subsequent marriage; or
                                  (V)(aa) the testator provided 
                                for the spouse by a transfer of 
                                funds or property outside the 
                                will; and
                                  (bb) an intent that the 
                                transfer be in lieu of a 
                                testamentary provision is 
                                demonstrated by statements of 
                                the testator or through a 
                                reasonable inference based on 
                                the amount of the transfer or 
                                other evidence.
                          (iii) Spouses married at the time of 
                        the will.--Should the surviving spouse 
                        of the testator be omitted from the 
                        will of the testator, the surviving 
                        spouse shall be treated, for purposes 
                        of trust or restricted land or trust 
                        personalty in the testator's estate, in 
                        accordance with the provisions of 
                        section 207(a)(2)(A), as though there 
                        was no will but only if--
                                  (I) the testator and 
                                surviving spouse were 
                                continuously married without 
                                legal separation for the 5-year 
                                period preceding the decedent's 
                                death;
                                  (II) the testator and 
                                surviving spouse have a 
                                surviving child who is the 
                                child of the testator;
                                  (III) the surviving spouse 
                                has made substantial payments 
                                toward the purchase of, or 
                                improvements to, the trust or 
                                restricted land in such estate; 
                                or
                                  (IV) the surviving spouse is 
                                under a binding obligation to 
                                continue making loan payments 
                                for the trust or restricted 
                                land for a substantial period 
                                of time,
                        except that, if there is evidence that 
                        the testator adequately provided for 
                        the surviving spouse and any minor 
                        children by a transfer of funds or 
                        property outside of the will, this 
                        clause shall not apply.
                  (B) Children.--
                          (i) In general.--If a testator 
                        executed the will of the testator 
                        before the birth or adoption of 1 or 
                        more children of the testator, and the 
                        omission of the children from the will 
                        is a product of inadvertence rather 
                        than an intentional omission, the 
                        children shall share in the trust or 
                        restricted interests in land and trust 
                        personalty as if the decedent had died 
                        intestate.
                          (ii) Adopted heirs.--Any person 
                        recognized as an heir by virtue of 
                        adoption under the Act of July 8, 1940 
                        (25 U.S.C. 372a), shall be treated as 
                        the child of a decedent under this 
                        subsection.
                          (iii) Adopted-out children.--
                                  (I) In general.--For purposes 
                                of this Act, an adopted person 
                                shall not be considered the 
                                child or issue of his natural 
                                parents, except in distributing 
                                the estate of a natural kin, 
                                other than the natural parent, 
                                who has maintained a family 
                                relationship with the adopted 
                                person. If a natural parent 
                                shall have married the adopting 
                                parent, the adopted person for 
                                purposes of inheritance by, 
                                from and through him shall also 
                                be considered the issue of such 
                                natural parent.
                                  (II) Eligible heir pursuant 
                                to other federal law or tribal 
                                law.--Notwithstanding the 
                                provisions of subparagraph 
                                (B)(iii)(I), other Federal laws 
                                and laws of the Indian tribe 
                                with jurisdiction over the 
                                trust or restricted interest in 
                                land may otherwise define the 
                                inheritance rights of adopted-
                                out children.
          (3) Divorce.--
                  (A) Surviving spouse.--
                          (i) In general.--An individual who is 
                        divorced from a decedent, or whose 
                        marriage to the decedent has been 
                        annulled, shall not be considered to be 
                        a surviving spouse unless, by virtue of 
                        a subsequent marriage, the individual 
                        is married to the decedent at the time 
                        of death of the decedent.
                          (ii) Separation.--A decree of 
                        separation that does not dissolve a 
                        marriage, and terminate the status of 
                        husband and wife, shall not be 
                        considered a divorce for the purpose of 
                        this subsection.
                          (iii) No effect on adjudications.--
                        Nothing in clause (i) shall prevent the 
                        Secretary from giving effect to a 
                        property right settlement relating to a 
                        trust or restricted interest in land or 
                        an interest in trust personalty if 1 of 
                        the parties to the settlement dies 
                        before the issuance of a final decree 
                        dissolving the marriage of the parties 
                        to the property settlement.
                  (B) Effect of subsequent divorce on a will or 
                devise.--
                          (i) In general.--If, after executing 
                        a will, a testator is divorced or the 
                        marriage of the testator is annulled, 
                        as of the effective date of the divorce 
                        or annulment, any disposition of trust 
                        or restricted interests in land or of 
                        trust personalty made by the will to 
                        the former spouse of the testator shall 
                        be considered to be revoked unless the 
                        will expressly provides otherwise.
                          (ii) Property.--Property that is 
                        prevented from passing to a former 
                        spouse of a decedent under clause (i) 
                        shall pass as if the former spouse 
                        failed to survive the decedent.
                          (iii) Provisions of wills.--Any 
                        provision of a will that is considered 
                        to be revoked solely by operation of 
                        this subparagraph shall be revived by 
                        the remarriage of a testator to the 
                        former spouse of the testator.
          (4) After-born heirs.--A child in gestation at the 
        time of decedent's death will be treated as having 
        survived the decedent if the child lives at least 120 
        hours after its birth.
          (5) Advancements of trust personalty during lifetime; 
        effect on distribution of estate.--
                  (A) The trust personalty of a decedent who 
                dies intestate as to all or a portion of his or 
                her estate, given during the decedent's 
                lifetime to a person eligible to be an heir of 
                the decedent under subsection (b)(2)(B), shall 
                be treated as an advancement against the heir's 
                inheritance, but only if the decedent declared 
                in a contemporaneous writing, or the heir 
                acknowledged in writing, that the gift is an 
                advancement or is to be taken into account in 
                computing the division and distribution of the 
                decedent's intestate estate.
                  (B) For the purposes of this section, trust 
                personalty advanced during the decedent's 
                lifetime is valued as of the time the heir came 
                into possession or enjoyment of the property or 
                as of the time of the decedent's death, 
                whichever occurs first.
                  (C) If the recipient of the trust personalty 
                predeceases the decedent, the property shall 
                not be treated as an advancement or taken into 
                account in computing the division and 
                distribution of the decedent's intestate estate 
                unless the decedent's contemporaneous writing 
                provides otherwise.
          (6) heirs related to decedent through 2 lines; single 
        share.--A person who is related to the decedent through 
        2 lines of relationship is entitled to only a single 
        share of the trust or restricted land or trust 
        personalty in the decedent's estate based on the 
        relationship that would entitle such person to the 
        larger share.
          (7) Notice.--
                  (A) In general.--To the maximum extent 
                practicable, the Secretary shall notify each 
                owner of trust and restricted land of the 
                provisions of this Act.
                  (B) Combined notices.--The notice under 
                subparagraph (A) may, at the discretion of the 
                Secretary, be provided with the notice required 
                under subsection (a) of section (8) of the 
                American Indian Probate Reform Act of 2004.
          (8) Renunciation or disclaimer of interests.--
                  (A) In general.--Any person 18 years of age 
                or older may renounce or disclaim an 
                inheritance of a trust or restricted interest 
                in land or in trust personalty through 
                intestate succession or devise, either in full 
                or subject to the reservation of a life estate 
                (where the interest is an interest in land), in 
                accordance with subparagraph (B), by filing a 
                signed and acknowledged declaration with the 
                probate decisionmaker prior to entry of a final 
                probate order. No interest so renounced or 
                disclaimed shall be considered to have vested 
                in the renouncing or disclaiming heir or 
                devisee, and the renunciation or disclaimer 
                shall not be considered to be a transfer or 
                gift of the renounced or disclaimed interest.
                  (B) Eligible recipients of renounced or 
                disclaimed interests, notice to recipients.--
                          (i) Interests in land.--A trust or 
                        restricted interest in land may be 
                        renounced or disclaimed only in favor 
                        of
                                  (I) an eligible heir;
                                  (II) any person who would 
                                have been eligible to be 
                                devisee of the interest in 
                                question pursuant to subsection 
                                (b)(1)(A) (but only in cases 
                                where the renouncing person is 
                                a devisee of the interest under 
                                a valid will); or
                                  (III) the Indian tribe with 
                                jurisdiction over the interest 
                                in question;
                        and the interest so renounced shall 
                        pass to its recipient in trust or 
                        restricted status.
                          (ii) Trust personalty.--An interest 
                        in trust personalty may be renounced or 
                        disclaimed in favor of any person who 
                        would be eligible to be a devisee of 
                        such an interest under subsection 
                        (b)(3) and shall pass to the recipient 
                        in accordance with the provisions of 
                        that subsection.
                          (iii) Unauthorized renunciations and 
                        disclaimers.--Unless renounced or 
                        disclaimed in favor of a person or 
                        Indian tribe eligible to receive the 
                        interest in accordance with the 
                        provisions of this subparagraph, a 
                        renounced or disclaimed interest shall 
                        pass as if the renunciation or 
                        disclaimer had not been made.
                  (C) Acceptance of interest.--A renunciation 
                or disclaimer of an interest filed in 
                accordance with this paragraph shall be 
                considered accepted when implemented in a final 
                order by the decisionmaker, and shall 
                thereafter be irrevocable. No renunciation or 
                disclaimer of an interest shall be included in 
                such order unless the recipient of the interest 
                has been given notice of the renunciation or 
                disclaimer and has not refused to accept the 
                interest. All disclaimers and renunciations 
                filed and implemented in probate orders made 
                effective prior to the date of enactment of the 
                American Indian Probate Reform Act of 2004 are 
                hereby ratified.
                  (D) Rule of construction.--Nothing in this 
                paragraph shall be construed to allow the 
                renunciation of an interest that is subject to 
                the provisions of section 207(a)(2)(D) (25 
                U.S.C. 2206(a)(2)(D)) in favor of more than 1 
                person.
          (9) Consolidation agreements.--
                  (A) In general.--During the pendency of 
                probate, the decisionmaker is authorized to 
                approve written consolidation agreements 
                effecting exchanges or gifts voluntarily 
                entered into between the decedent's eligible 
                heirs or devisees, to consolidate interests in 
                any tract of land included in the decedent's 
                trust inventory. Such agreements may provide 
                for the conveyance of interests already owned 
                by such heirs or devisees in such tracts, 
                without having to comply with the Secretary's 
                rules otherwise applicable to conveyances by 
                deed of trust or restricted interests in land.
                  (B) Effective.--An agreement approved under 
                subparagraph (A) shall be considered final when 
                implemented in an order by a decisionmaker. The 
                final probate order shall direct any changes 
                necessary to the Secretary's land records, to 
                reflect and implement the terms of the approved 
                agreement.
                  (C) Effect on purchase option at probate.--
                Any interest in trust or restricted land that 
                is subject to a consolidation agreement under 
                this paragraph or section 207(e) (25 U.S.C. 
                2206(e)) shall not be available for purchase 
                under section 207(p) (25 U.S.C. 2206(p)) unless 
                the decisionmaker determines that the agreement 
                should not be approved.
    (l) Notification to Landowners.--After receiving written 
request by any owner of a trust or restricted interest in land, 
the Secretary shall provide to such landowner the following 
information with respect to each tract of trust or restricted 
land in which the landowner has an interest--
          (1) The location of the tract of land involved.
          (2) The identity of each other co-owner of interests 
        in the parcel of land.
          (3) The percentage of ownership of each owner of an 
        interest in the tract.
    (m) Pilot Project for the Management of Trust Assets of 
Indian Families and Relatives.--
          (1) Development pilot project.--The Secretary shall 
        consult with tribes, individual landowner 
        organizations, Indian advocacy organizations, and other 
        interested parties to--
                  (A) develop a pilot project for the creation 
                of legal entities such as private or family 
                trusts, partnerships, corporations or other 
                organizations to improve, facilitate and assist 
                in the efficient management of interests in 
                trust or restricted lands or funds owned by 
                Indian family members and relatives; and
                  (B) develop proposed rules, regulations, and 
                guidelines to implement the pilot project, 
                including--
                          (i) the criteria for establishing 
                        such legal entities;
                          (ii) reporting and other requirements 
                        that the Secretary determines to be 
                        appropriate for administering such 
                        entities; and
                          (iii) provisions for suspending or 
                        revoking the authority of an entity to 
                        engage in activities relating to the 
                        management of trust or restricted 
                        assets under the pilot project, in 
                        order to protect the interests of the 
                        beneficial owners of such assets.
          (2) Primary purposes; limitation; approval of 
        transactions; payments by secretary.--
                  (A) Purposes.--The primary purpose of any 
                entity organized under the pilot project shall 
                be to improve, facilitate, and assist in the 
                management of interests in trust or restricted 
                land, held by 1 or more persons, in furtherance 
                of the purposes of this Act.
                  (B) Limitation.--The organization or 
                activities of any entity under the pilot 
                project shall not be construed to impair, 
                impede, replace, abrogate, or modify in any 
                respect the trust duties or responsibilities of 
                the Secretary, nor shall anything in this 
                subsection or in any rules, regulations, or 
                guidelines developed under this subsection 
                enable any private or family trustee of trust 
                or restricted interests in land to exercise any 
                powers over such interests greater than that 
                held by the Secretary with respect to such 
                interests.
                  (C) Secretarial approval of transactions.--
                Any transaction involving the lease, use, 
                mortgage or other disposition of trust or 
                restricted land or other trust assets 
                administered by or through an entity under the 
                pilot project shall be subject to approval by 
                the Secretary in accordance with applicable 
                Federal law.
                  (D) Payments.--The Secretary shall have the 
                authority to make payments of income and 
                revenues derived from trust or restricted land 
                or other trust assets administered by or 
                through an entity participating in the pilot 
                project directly to the entity, in accordance 
                with requirements of the regulations adopted 
                pursuant to this subsection.
          (3) Limitations on pilot project.--
                  (A) Number of organizations.--The number of 
                entities established under the pilot project 
                authorized by this subsection shall not exceed 
                30.
                  (B) Regulations required.--No entity shall 
                commence activities under the pilot project 
                authorized by this subsection until the 
                Secretary has adopted final rules and 
                regulations under paragraph (1)(B).
          (4) Report to congress.--Prior to the expiration of 
        the pilot project provided for under this subsection, 
        the Secretary shall submit a report to Congress 
        stating--
                  (A) a description of the Secretary's 
                consultation with Indian tribes, individual 
                landowner associations, Indian advocacy 
                organizations, and other parties consulted with 
                regarding the development of rules and 
                regulations for the creation and management of 
                interests in trust and restricted lands under 
                the pilot project;
                  (B) the feasibility of accurately monitoring 
                the performance of legal entities such as those 
                involved in the pilot project, and the 
                effectiveness of such entities as mechanisms to 
                manage and protect trust assets;
                  (C) the impact that the use of entities such 
                as those in the pilot project may have with 
                respect to the accomplishment of the goals of 
                the Indian Land Consolidation Act (25 U.S.C. 
                2201 et seq); and
                  (D) any recommendations that the Secretary 
                may have regarding whether to adopt a permanent 
                private and family trust program as a 
                management and consolidation measure for 
                interests in trust or restricted lands.
    (n) Notice to Heirs.--Prior to holding a hearing to 
determine the heirs to trust or restricted property, or making 
a decision determining such heirs, the Secretary shall seek to 
provide actual written notice of the proceedings to all heirs. 
Such efforts shall include--
          (1) a search of publicly available records and 
        Federal records, including telephone and address 
        directories and including electronic search services or 
        directories;
          (2) an inquiry with family members and co-heirs of 
        the property;
          (3) an inquiry with the tribal government of which 
        the owner is a member, and the tribal government with 
        jurisdiction over the property, if any; and
          (4) if the property is of a value greater than 
        $2,000, engaging the services of an independent firm to 
        conduct a missing persons search.
    (o) Missing Heirs.--
          (1) For purposes of this subsection and subsection 
        (m), an heir may be presumed missing if--
                  (A) such heir's whereabouts remain unknown 60 
                days after completion of notice efforts under 
                subsection (m); and
                  (B) in the proceeding to determine a 
                decedent's heirs, the Secretary finds that the 
                heir has had no contact with other heirs of the 
                decedent, if any, or with the Department 
                relating to trust or restricted land or other 
                trust assets at any time during the 6-year 
                period preceding the hearing to determine 
                heirs.
          (2) Before the date for declaring an heir missing, 
        any person may request an extension of time to locate 
        such heir. The Secretary shall grant a reasonable 
        extension of time for good cause.
          (3) An heir shall be declared missing only after a 
        review of the efforts made in the heirship proceeding 
        and a finding has been made that this subsection has 
        been complied with.
          (4) An heir determined to be missing pursuant to this 
        subsection shall be deemed to have predeceased the 
        decedent for purposes of descent and devise of trust or 
        restricted land and trust personalty within that 
        decedent's estate.
    (p) Purchase Option at Probate.--
          (1) In general.--The trust or restricted interests in 
        a parcel of land in the decedent's estate may be 
        purchased at probate in accordance with the provisions 
        of this subsection.
          (2) Sale of interest at fair market value.--Subject 
        to paragraph (3), the Secretary is authorized to sell 
        trust or restricted interests in land subject to this 
        subsection, including the interest that a surviving 
        spouse would otherwise receive under section 
        207(a)(2)(A) or (D), at no less than fair market value, 
        as determined in accordance with the provisions of this 
        Act, to any of the following eligible purchasers:
                  (A) Any other eligible heir taking an 
                interest in the same parcel of land by 
                intestate succession or the decedent's other 
                devisees of interests in the same parcel who 
                are eligible to receive a devise under section 
                207(b)(1)(A).
                  (B) All persons who own undivided trust or 
                restricted interests in the same parcel of land 
                involved in the probate proceeding.
                  (C) The Indian tribe with jurisdiction over 
                the interest, or the Secretary on behalf of 
                such Indian tribe.
          (3) Request to purchase; auction; consent 
        requirements.--No sale of an interest in probate shall 
        occur under this subsection unless--
                  (A) an eligible purchaser described in 
                paragraph (2) submits a written request to 
                purchase prior to the distribution of the 
                interest to heirs or devisees of the decedent 
                and in accordance with any regulations of the 
                Secretary; and
                  (B) except as provided in paragraph (5), the 
                heirs or devisees of such interest, and the 
                decedent's surviving spouse, if any, receiving 
                a life estate under section 207(a)(2)(A) or (D) 
                consent to the sale.
        If the Secretary receives more than 1 request to 
        purchase the same interest, the Secretary shall sell 
        the interest by public auction or sealed bid (as 
        determined by the Secretary) at not less than fair 
        market value to the eligible purchaser submitting the 
        highest bid.
          (4) Appraisal and notice.--Prior to the sale of an 
        interest pursuant to this subsection, the Secretary 
        shall--
                  (A) appraise the interest at its fair market 
                value in accordance with this Act;
                  (B) provide eligible heirs, other devisees, 
                and the Indian tribe with jurisdiction over the 
                interest with written notice, sent by first 
                class mail, that the interest is available for 
                purchase in accordance with this subsection;
                  (C) if the Secretary receives more than 1 
                request to purchase the interest by a person 
                described in subparagraph (B), provide notice 
                of the manner (auction or sealed bid), time and 
                place of the sale (or the time and place for 
                submitting sealed bids), a description, and the 
                appraised fair market value, of the interest to 
                be sold--
                          (i) to the heirs or other devisees 
                        and the Indian tribe with jurisdiction 
                        over the interest, by first class mail; 
                        and
                          (ii) to all other eligible 
                        purchasers, by posting written notice 
                        in at least 5 conspicuous places in the 
                        vicinity of the place of hearing.
          (5) Small undivided interests in indian lands.--
                  (A) In general.--Subject to subparagraph (B), 
                the consent of a person who is an heir 
                otherwise required under paragraph (3)(B) shall 
                not be required for the auction and sale of an 
                interest at probate under this subsection if--
                          (i) the interest is passing by 
                        intestate succession; and
                          (ii) prior to the auction the 
                        Secretary determines in the probate 
                        proceeding that the interest passing to 
                        such heir represents less than 5 
                        percent of the entire undivided 
                        ownership of the parcel of land as 
                        evidenced by the Secretary's records as 
                        of the time the determination is made.
                  (B) Exception.--Notwithstanding subparagraph 
                (A), the consent of such heir shall be required 
                for the sale at probate of the heir's interest 
                if, at the time of the decedent's death, the 
                heir was residing on the parcel of land of 
                which the interest to be sold was a part.
          (6) Distribution of proceeds.--Proceeds from the sale 
        of interests under this subsection shall be distributed 
        to the heirs, devisees, or spouse whose interest was 
        sold in accordance with the values of their respective 
        interests. The proceeds attributable to an heir or 
        devisee shall be held in an account as trust personally 
        if the interest sold would have otherwise passed to the 
        heir or devisee in trust or restricted status.

                             25 U.S.C. 2212


[Sec. 2212. Pilot program for the acquisition of fractional interests]

Sec. 2212. Fractional interest acquisition program]

    (a) Acquisition by Secretary.--
          (1) In general.--The Secretary may acquire, at the 
        discretion of the Secretary and with the consent of the 
        owner, or from an heir during probate in accordance 
        with section 207(p) (25 U.S.C. 2206(p)), and at fair 
        market value, any fractional interest in trust or 
        restricted lands.
          [(2) Authority of secretary.--]
          (2) Authority of secretary.--The Secretary shall 
        submit--
                  (A) In general.--The Secretary shall have the 
                authority to acquire interests in trust or 
                restricted lands under this section during the 
                3-year period beginning on the date of 
                certification that is referred to in section 
                207(g)(5).
                  (B) Required report.--Prior to expiration of 
                the authority provided for in subparagraph (A), 
                the Secretary shall submit] the report required 
                under section 218 concerning [whether the 
                program to acquire fractional interests should 
                be extended or altered to make resources] how 
                the fractional interest acquisition program 
                should be enhanced to increase the resources 
                made available to Indian tribes and individual 
                Indian landowners.
          (3) Interests held in trust.--Subject to section 214, 
        the Secretary shall immediately hold interests acquired 
        under this Act in trust for the recognized tribal 
        government that exercises jurisdiction over the land 
        involved.
    (b) Requirements.--In implementing subsection (a), the 
Secretary--

           *       *       *       *       *       *       *

          [(4) shall minimize the administrative costs 
        associated with the land acquisition program.]
          (4) shall minimize the administrative costs 
        associated with the land acquisition program through 
        the use of policies and procedures designed to 
        accommodate the voluntary sale of interests under under 
        this section, notwithstanding the existence of any 
        otherwise applicable policy, procedure, or regulation, 
        through the elimination of duplicate--
                  (A) conveyance documents;
                  (B) administrative proceedings; and
                  (C) transactions.
    (c) Sale of Interest to Indian Landowners.--
          (1) Conveyance at request.--
                  (A) In general.--At the request of any Indian 
                who owns [at least 5 percent of the] an 
                undivided interest in a parcel of trust or 
                restricted land, the Secretary shall convey an 
                interest in such a parcel acquired under this 
                section to the Indian [landowner upon payment 
                by the Indian landowner of the amount paid for 
                the interest by the Secretary.] landowner--
                          (i) on payment by the Indian 
                        landowner of the amount paid for the 
                        interest by the Secretary; or
                          (ii) if--
                                  (I) the Indian referred to in 
                                this subparagraph provides 
                                assurances that the purchase 
                                price will be paid by pledging 
                                revenue from any source, 
                                including trust resources; and
                                  (II) the Secretary determines 
                                that the purchase price will be 
                                paid in a timely and efficient 
                                manner.
                  (B) Limitation.--With respect to a conveyance 
                under this subsection, the Secretary shall not 
                approve an application to terminate the trust 
                status or remove the restrictions of such an 
                interest unless the interest is subject to a 
                foreclosure of a mortgage in accordance with 
                the Act of March 29, 1956 (25 USC 483a).

           *       *       *       *       *       *       *

          (3) Limitation.--If an Indian tribe that has 
        jurisdiction over a parcel of trust or restricted land 
        owns [10 percent or more of the undivided interests] an 
        undivided interest in a parcel of such land, such 
        interest may only be acquired under paragraph (1) with 
        the consent of such Indian tribe.
    (d) Authorization of Appropriations.--There is authorized 
to be appropriated to carry out this section $75,000,000 for 
fiscal year 2005, $95,000,000 for fiscal year 2006, and 
$145,000,000 for each of fiscal years 2007 through 2010.

                             25 U.S.C. 2213


Sec. 2213. Administration of acquired fractional interests, disposition 
                    of proceeds

           *       *       *       *       *       *       *


    [(b) Conditions.--
          [(1) In general.--The conditions described in this 
        paragraph are as follows:
                  [(A) Until the purchase price paid by the 
                Secretary for an interest referred to in 
                subsection (a) has been recovered, or until the 
                Secretary makes any of the findings under 
                paragraph (2)(A), any lease, resource sale 
                contract, right-of-way, or other document 
                evidencing a transaction affecting the interest 
                shall contain a clause providing that all 
                revenue derived from the interest shall be paid 
                to the Secretary.
                  [(B) Subject to subparagraph (C), the 
                Secretary shall deposit any revenue derived 
                under subparagraph (A) into the Acquisition 
                Fund created under section 216.
                  [(C) The Secretary shall deposit any revenue 
                that is paid under subparagraph (A) that is in 
                excess of the purchase price of the fractional 
                interest involved to the credit of the Indian 
                tribe that receives the fractional interest 
                under section 213 and the tribe shall have 
                access to such funds in the same manner as 
                other funds paid to the Secretary for the use 
                of lands held in trust for the tribe.
                  [(D) Notwithstanding any other provision of 
                law, including section 16 of the Act of June 
                18, 1934 (commonly referred to as the `Indian 
                Reorganization Act') (48 Stat. 987, chapter 
                576; 25 U.S.C. 476), with respect to any 
                interest acquired by the Secretary under 
                section 213, the Secretary may approve a 
                transaction covered under this section on 
                behalf of a tribe until--
                          [(i) the Secretary makes any of the 
                        findings under paragraph (2)(A); or
                          [(ii) an amount equal to the purchase 
                        price of that interest has been paid 
                        into the Acquisition Fund created under 
                        section 216.
          [(2) Exception.--Paragraph (1)(A) shall not apply to 
        any revenue derived from an interest in a parcel of 
        land acquired by the Secretary under section 213 
        after--
                  [(A) the Secretary makes a finding that--
                          [(i) the costs of administering the 
                        interest will equal or exceed the 
                        projected revenues for the parcel 
                        involved;
                          [(ii) in the discretion of the 
                        Secretary, it will take an unreasonable 
                        period of time for the parcel to 
                        generate revenue that equals the 
                        purchase price paid for the interest; 
                        or
                          [(iii) a subsequent decrease in the 
                        value of land or commodities associated 
                        with the land make it likely that the 
                        interest will be unable to generate 
                        revenue that equals the purchase price 
                        paid for the interest in a reasonable 
                        time; or
                  [(B) an amount equal to the purchase price of 
                that interest in land has been paid into the 
                Acquisition Fund created under section 216.]
    (b) Application of Revenue From Acquired Interests to Land 
Consolidation Program.--
          (1) In general.--The Secretary shall have a lien on 
        any revenue accruing to an interest described in 
        subsection (a) until the Secretary provides for the 
        removal of the lien under paragraph (3), (4), or (5).
          (2) Requirements.--
                  (A) In general.--Until the Secretary removes 
                a lien from an interest in land under paragraph 
                (1)--
                          (i) any lease, resource sale 
                        contract, right-of-way, or other 
                        document evidencing a transaction 
                        affecting the interest shall contain a 
                        clause providing that all revenue 
                        derived from the interest shall be paid 
                        to the Secretary; and
                          (ii) any revenue derived from any 
                        interest acquired by the Secretary in 
                        accordance with section 213 shall be 
                        deposited in the fund created under 
                        section 216.
                  (B) Approval of transactions.--
                Notwithstanding section 16 of the Act of June 
                18, 1934 (commonly known as the ``Indian 
                Reorganization Act'') (25 U.S.C. 476), or any 
                other provision of law, until the Secretary 
                removes a lien from an interest in land under 
                paragraph (1), the Secretary may approve a 
                transaction covered under this section on 
                behalf of an Indian tribe.
          (3) Removal of liens after findings.--The Secretary 
        may remove a lien referred to in paragraph (1) if the 
        Secretary makes a finding that--
                  (A) the costs of administering the interest 
                from which revenue accrues under the lien will 
                equal or exceed the projected revenues for the 
                parcel of land involved;
                  (B) in the discretion of the Secretary, it 
                will take an unreasonable period of time for 
                the parcel of land to generate revenue that 
                equals the purchase price paid for the 
                interest; or
                  (C) a subsequent decrease in the value of 
                land or commodities associated with the parcel 
                of land make it likely that the interest will 
                be unable to generate revenue that equals the 
                purchase price paid for the interest in a 
                reasonable time.
          (4) Removal of liens upon payment into the 
        acquisition fund.--The Secretary shall remove a lien 
        referred to in paragraph (1) upon payment of an amount 
        equal to the purchase price of that interest in land 
        into the Acquisition Fund created under section 2215 of 
        this title, except where the tribe with jurisdiction 
        over such interest in land authorizes the Secretary to 
        continue the lien in order to generate additional 
        acquisition funds.
          (5) Other removal of liens.--In accordance with 
        regulations to be promulgated by the Secretary, and in 
        consultation with tribal governments and other entities 
        described in section 213(b)(3), the Secretary shall 
        periodically remove liens referred to in paragraph (1) 
        from interests in land acquired by the Secretary.

                             25 U.S.C. 2214


Sec. 2214. Establishing fair market value

    For purposes of this chapter, the Secretary may develop a 
system of establishing the fair market value of various types 
of lands and improvements. Such a system may include 
determinations of fair market value based on appropriate 
geographic units as determined by the Secretary. Such system 
may govern the amounts offered for the purchase of interests in 
trust or restricted lands under [section 2212 of this title] 
this Act.

                             25 U.S.C. 2215


Sec. 2215. Acquisition fund

    (a) In General.--The Secretary shall establish an 
Acquisition Fund to--
          (1) disburse appropriations authorized to accomplish 
        the purposes of section 213; and
          [(2) collect all revenues received from the lease, 
        permit, or sale of resources from interests in trust or 
        restricted lands transferred to Indian tribes by the 
        Secretary under section 213 or paid by Indian 
        landowners under section 213(c).]
          (2) collect all revenues received from the lease, 
        permit, or sale of resources from interests acquired 
        under section 213 or paid by Indian landowners under 
        section 213.
    (b) Deposits; Use.--
          (1) In general.--[Subject to paragraph (2), all] All 
        proceeds from leases, permits, or resource sales 
        derived from an interest in trust or restricted lands 
        described in subsection (a)(2) shall--
                  (A) be deposited in the Acquisition Fund; 
                [and]
                  (B) as specified in advance in appropriations 
                Acts, be available for the purpose of acquiring 
                additional fractional interests in trust or 
                restricted lands[.] ; and
                  (C) be used to acquire undivided interests on 
                the reservation from which the income was 
                derived.
          [(2) Maximum deposits of proceeds.--With respect to 
        the deposit of proceeds derived from an interest under 
        paragraph (1), the aggregate amount deposited under 
        that paragraph shall not exceed the purchase price of 
        that interest under section 213.]
          (2) Use of funds.--The Secretary may use the revenue 
        deposited in the Acquisition Fund under paragraph (1) 
        to acquire some or all of the undivided interests in 
        any parcels of land in accordance with section 205.

                             25 U.S.C. 2216


Sec. 2216. Trust and restricted land transactions

           *       *       *       *       *       *       *


    (b) Sales, Exchanges and Gift Deeds Between Indians and 
Between Indians and Indian Tribes.--
          (1) In General.--

           *       *       *       *       *       *       *

                  [(B) Waiver of requirement.--The requirement 
                for an estimate of value under subparagraph (A) 
                may be waived in writing by an Indian selling, 
                exchanging, or conveying by gift deed for no or 
                nominal consideration an interest in land with 
                an Indian person who is the owner's spouse, 
                brother, sister, lineal ancestor of Indian 
                blood, lineal descendant, or collateral heir.]
                  (B) Waiver of requirement.--The requirement 
                for an estimate of value under subparagraph (A) 
                may be waived in writing by an owner of a trust 
                or restricted interest in land either selling, 
                exchanging, or conveying by gift deed for no or 
                nominal consideration such interest--
                          (i) to an Indian person who is the 
                        owner's spouse, brother, sister, lineal 
                        ancestor, lineal descendant, or 
                        collateral heir; or
                          (ii) to an Indian co-owner or to the 
                        tribe with jurisdiction over the 
                        subject parcel of land, where the 
                        grantor owns a fractional interest that 
                        represents 5 percent or less of the 
                        parcel.

           *       *       *       *       *       *       *

    (e) Land Ownership Information.--[Notwithstanding any other 
provision of law, the names and mailing addresses of the Indian 
owners of trust or restricted lands, and information on the 
location of the parcel and the percentage of undivided interest 
owned by each individual, or of any interest in trust or 
restricted lands, shall, upon written request, be made 
available to--] Notwithstanding any other provision of law, the 
names and mailing addresses of the owners of any interest in 
trust or restricted lands, and information on the location of 
the parcel and the percentage of undivided interest owned by 
each individual shall, upon request, be made available to--
          (1) other [Indian] owners of interests in trust or 
        restricted lands within the same reservation;

           *       *       *       *       *       *       *

          (3) [prospective applicants for the leasing, use, or 
        consolidation of] any person that is leasing, using, or 
        consolidating, or is applying to lease, use, or 
        consolidate such trust or restricted land or the 
        interest in trust or restricted lands.
    [(f) Notice to Indian Tribe.--After the expiration of the 
limitation period provided for in subsection (b)(2) and prior 
to considering an Indian application to terminate the trust 
status or to remove the restrictions on alienation from trust 
or restricted land sold, exchanged or otherwise conveyed under 
this section, the Indian tribe that exercises jurisdiction over 
the parcel of such land shall be notified of the application 
and given the opportunity to match the purchase price that has 
been offered for the trust or restricted land involved.]
    (f) Purchase of Land by Indian Tribe.--
          (1) In general.--Except as provided in paragraph (2), 
        before the Secretary approves an application to 
        terminate the trust status or remove the restrictions 
        on alienation from a parcel of, or interest in, trust 
        or restricted land, the Indian tribe with jurisdiction 
        over the parcel shall have the opportunity--
                  (A) to match any offer contained in the 
                application; or
                  (B) in a case in which there is no purchase 
                price offered, to acquire the interest in the 
                parcel by paying the fair market value of the 
                interest.
          (2) Exception for family farms.--
                  (A) In general.--Paragraph (1) shall not 
                apply to a parcel of, or interest in, trust or 
                restricted land that is part of a family farm 
                that is conveyed to a member of the family of a 
                landowner (as defined in section 
                206(c)(2)(A)(iv)) if the conveyance requires 
                that in the event that the parcel or interest 
                is offered for sale to an entity or person that 
                is not a member of the family of the landowner, 
                the Indian tribe with jurisdiction over the 
                land shall be afforded the opportunity to 
                purchase the interest pursuant to paragraph 
                (1).
                  (B) Applicability of other provision.--
                Section 206(c)(2)(A) shall apply with respect 
                to the recording and mortgaging of any trust or 
                restricted land referred to in subparagraph 
                (A).

                             25 U.S.C. 2218


Sec. 2218. Approval of leases, rights-of-way, and sales of natural 
                    resources

           *       *       *       *       *       *       *


    (b) Applicable Percentage.--
          (1) Percentage interest.--The applicable percentage 
        referred to in subsection (a)(1) of this section shall 
        be determined as follows:
                  (A) If there are 5 or fewer owners of the 
                undivided interest in the allotted land, the 
                applicable percentage shall be [100] 90 
                percent.

           *       *       *       *       *       *       *

    (g) Other Laws.--Nothing in this Act shall be construed to 
supersede, repeal, or modify any general or specific statute 
authorizing the grant or approval of any type of land use 
transaction involving fractional interests in trust or 
restricted land.

                             25 U.S.C. 2220


Sec. 2220. Owner-managed interests

    (a) Purpose.--The purpose of this section is to provide a 
means for the co-owners of trust or restricted interests in a 
parcel of land to enter into surface leases of such parcel for 
certain purposes without approval of the Secretary.
    (b) Mineral Interests.--Nothing in this section shall be 
construed to limit or otherwise affect the application of any 
Federal law requiring the Secretary to approve mineral leases 
or other agreements for the development of the mineral interest 
in trust or restricted land.
    (c) Owner Management.--
          (1) In general.--Notwithstanding any provision of 
        Federal law requiring the Secretary to approve 
        individual Indian leases of individual Indian trust or 
        restricted land, where the owners of all of the 
        undivided trust or restricted interests in a parcel of 
        land have submitted applications to the Secretary 
        pursuant to subsection (a), and the Secretary has 
        approved such applications under subsection (d), such 
        owners may, without further approval by the Secretary, 
        enter into a lease of the parcel for agricultural 
        purposes for a term not to exceed 10 years.
          (2) Rule of construction.--No such lease shall be 
        effective until it has been executed by the owners of 
        all undivided trust or restricted interests in the 
        parcel.
    (d) Approval of Applications for Owner Management.--
          (1) In general.--Subject to the provisions of 
        paragraph (2), the Secretary shall approve an 
        application for owner management submitted by a 
        qualified applicant pursuant to this section unless the 
        Secretary has reason to believe that the applicant is 
        submitting the application as the result of fraud or 
        undue influence. No such application shall be valid or 
        considered if it is received by the Secretary prior to 
        the date that is 1 year after the date on which notice 
        is published pursuant to section 8(a)(4) of the 
        American Indian Probate Act of 2004.
          (2) Commencement of owner-managed status.--
        Notwithstanding the approval of 1 or more applications 
        pursuant to paragraph (1), no trust or restricted 
        interest in a parcel of land shall acquire owner-
        managed status until applications for all of the trust 
        or restricted interests in such parcel of land have 
        been submitted to and approved by the Secretary 
        pursuant to this section.
    (e) Validity of Leases.--No lease of trust or restricted 
interests in a parcel of land that is owner-managed under this 
section shall be valid or enforceable against the owners of 
such interests, or against the land, the interest or the United 
States, unless such lease--
          (1) is consistent with, and entered into in 
        accordance with, the requirements of this section; or
          (2) has been approved by the Secretary in accordance 
        with other Federal laws applicable to the leasing of 
        trust or restricted land.
    (f) Lease Revenues.--The Secretary shall not be responsible 
for the collection of, or accounting for, any lease revenues 
accruing to any interests under a lease authorized by 
subsection (e), so long as such interest is in owner-managed 
status under the provisions of this section.
    (g) Jurisdiction.--
          (1) Jurisdiction unaffected by status.--The Indian 
        tribe with jurisdiction over an interest in trust or 
        restricted land that becomes owner-managed pursuant to 
        this section shall continue to have jurisdiction over 
        the interest to the same extent and in all respects 
        that such tribe had prior to the interest acquiring 
        owner-managed status.
          (2) Persons using land.--Any person holding, leasing, 
        or otherwise using such interest in land shall be 
        considered to consent to the jurisdiction of the Indian 
        tribe referred to in paragraph (1), including such 
        tribe's laws and regulations, if any, relating to the 
        use, and any effects associated with the use, of the 
        interest.
    (h) Continuation of Owner-Managed Status; Revocation.--
          (1) In general.--Subject to the provisions of 
        paragraph (2), after the applications of the owners of 
        all of the trust or restricted interests in a parcel of 
        land have been approved by the Secretary pursuant to 
        subsection (d), each such interest shall continue in 
        owner-managed status under this section notwithstanding 
        any subsequent conveyance of the interest in trust or 
        restricted status to another person or the subsequent 
        descent of the interest in trust or restricted status 
        by testate or intestate succession to 1 or more heirs.
          (2) Revocation.-Owner-managed status of an interest 
        may be revoked upon written request of the owners 
        (including the parents or legal guardians of minors or 
        incompetent owners) of all trust or restricted 
        interests in the parcel, submitted to the Secretary in 
        accordance with regulations adopted under subsection 
        (l). The revocation shall become effective as of the 
        date on which the last of all such requests has been 
        delivered to the Secretary.
          (3) Effect of revocation.--Revocation of owner-
        managed status under paragraph (2) shall not affect the 
        validity of any lease made in accordance with the 
        provisions of this section prior to the effective date 
        of the revocation, provided that, after such revocation 
        becomes effective, the Secretary shall be responsible 
        for the collection of, and accounting for, all future 
        lease revenues accruing to the trust or restricted 
        interests in the parcel from and after such effective 
        date.
    (i) Defined Terms.--
          (1) For purposes of subsection (d)(1), the term 
        ``qualified applicant'' means--
                  (A) a person over the age of 18 who owns a 
                trust or restricted interest in a parcel of 
                land; and
                  (B) the parent or legal guardian of a minor 
                or incompetent person who owns a trust or 
                restricted interest in a parcel of land.
          (2) For purposes of this section, the term ``owner-
        managed status'' means, with respect to a trust or 
        restricted interest, that--
                  (A) the interest is a trust or restricted 
                interest in a parcel of land for which 
                applications covering all trust or restricted 
                interests in such parcel have been submitted to 
                and approved by the Secretary pursuant to 
                subsection (d);
                  (B) the interest may be leased without 
                approval of the Secretary pursuant to, and in a 
                manner that is consistent with, the 
                requirements of this section; and
                  (C) no revocation has occurred under 
                subsection (h)(2).
    (j) Secretarial Approval of Other Transactions.--Except 
with respect to the specific lease transaction described in 
paragraph (1) of subsection (c), interests that acquire owner-
managed status under the provisions of this section shall 
continue to be subject to all Federal laws requiring the 
Secretary to approve transactions involving trust or restricted 
land (including leases with terms of a duration in excess of 10 
years) that would otherwise apply to such interests if the 
interests had not acquired owner-managed status under this 
section.
    (k) Effect of Section.--Subject to subsections (c), (f), 
and (h), nothing in this section diminishes or otherwise 
affects any authority or responsibility of the Secretary with 
respect to an interest in trust or restricted land.

                             25 U.S.C. 2221


Sec. 2221. Annual notice and filing; current whereabouts of interest 
                    owners

    On at least an annual basis, the Secretary shall include 
along with other regular reports to owners of trust or 
restricted interests in land and individual Indian money 
account owners a change of name and address form by means of 
which the owner may confirm or update the owner's name and 
address. The change of name and address form shall include a 
section in which the owner may confirm and update the owner's 
name and address.

                             25 U.S.C. 348


Sec. 348. Patents to be held in trust; descent and partition

    Upon the approval of the allotments provided for in this 
Act by the Secretary of the Interior, he shall cause patents to 
issue therefor in the name of the allottees, which patents 
shall be of the legal effect, and declare that the United 
States does and will hold the land thus allotted, for the 
period of twenty-five years, in trust for the sole use and 
benefit of the Indian to whom such allotment shall have been 
made, or, in case of his decease, of his heirs according to the 
laws of the State or Territory where such land is located, and 
that at the expiration of said period the United States will 
convey the same by patent to said Indian, or his heirs as 
aforesaid, in fee, discharged of said trust and free of all 
charge or incumbrance whatsoever: Provided, That the President 
of the United States may in any case in his discretion extend 
the period. And if any conveyance shall be made of the lands 
set apart and allotted as herein provided, or any contract made 
touching the same, before the expiration of the time above 
mentioned, such conveyance or contract shall be absolutely null 
and void: [Provided, That the law of descent in force in the 
State or Territory where such lands are situate shall apply 
thereto after patents therefor have been executed and 
delivered, except as provided by the Indian Land Consolidation 
Act (25 U.S.C.A. Sec. 2201 et seq.) or a tribal probate code 
approved under such Act and except as herein otherwise 
provided:] Provided, That the rules of intestate succession 
under the Indian Land Consolidation Act (25 U.S.C. 2201 et 
seq.) (including a tribal probate code approved under that Act 
or regulations promulgated under that Act) shall apply to that 
land for which patents have been executed and delivered:

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                             25 U.S.C. 464


Sec. 464. Transfer of restricted Indian lands or shares in assets of 
                    Indian tribes or corporation; exchange of lands

    Except as provided herein, no sale, devise, gift, exchange, 
or other transfer of restricted Indian lands or of shares in 
the assets of any Indian tribe or corporation organized 
hereunder, shall be made or approved: Provided, however, That 
such lands or interests may, with the approval of the Secretary 
of the Interior, be sold, devised, or otherwise transferred to 
the Indian tribe in which the lands or shares are located or 
from which the shares were derived or to a successor 
corporation; and in all instances such lands or interests shall 
descend or be devised[, in accordance with the then existing 
laws of the State, or Federal laws where applicable, in which 
said lands are located or in which the subject matter of the 
corporation is located,] to any member of such tribe or of such 
corporation or any heirs or lineal descendants of such member 
or[, except as provided by the Indian Land Consolidation Act 
(25 U.S.C.A. Sec. 2201 et seq.), any other Indian person for 
whom the Secretary of Interior determines that the United 
States may hold land in trust:] in accordance with the Indian 
Land Consolidation Act (25 U.S.C. 2201 et seq.) (including a 
tribal probate code approved under that Act or regulations 
promulgated under that Act):

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