[108th Congress Public Law 374]
[From the U.S. Government Printing Office]
[DOCID: f:publ374.108]
[[Page 118 STAT. 1773]]
Public Law 108-374
108th Congress
An Act
To amend the Indian Land Consolidation Act to improve provisions
relating to probate of trust and restricted land, and for other
purposes. <<NOTE: Oct. 27, 2004 - [S. 1721]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress <<NOTE: American Indian Probate
Reform Act of 2004.>> assembled,
SECTION 1. <<NOTE: 15 USC 2201 note.>> SHORT TITLE.
This Act may be cited as the ``American Indian Probate Reform Act of
2004''.
SEC. 2. <<NOTE: 15 USC 2201 note.>> FINDINGS.
Congress finds that--
(1) the Act of February 8, 1887 (commonly known as the
``Indian General Allotment Act'') (25 U.S.C. 331 et seq.), which
authorized the allotment of Indian reservations, did not permit
Indian allotment owners to provide for the testamentary
disposition of the land that was allotted to them;
(2) that Act provided that allotments would descend
according to State law of intestate succession based on the
location of the allotment;
(3) the reliance of the Federal Government on the State law
of intestate succession with respect to the descent of
allotments has resulted in numerous problems affecting Indian
tribes, members of Indian tribes, and the Federal Government,
including--
(A) the increasingly fractionated ownership of trust
and restricted land as that land is inherited by
successive generations of owners as tenants in common;
(B) the application of different rules of intestate
succession to each interest of a decedent in or to trust
or restricted land if that land is located within the
boundaries of more than 1 State, which application--
(i) makes probate planning unnecessarily
difficult; and
(ii) impedes efforts to provide probate
planning assistance or advice;
(C) the absence of a uniform general probate code
for trust and restricted land, which makes it difficult
for Indian tribes to work cooperatively to develop
tribal probate codes; and
(D) the failure of Federal law to address or provide
for many of the essential elements of general probate
law, either directly or by reference, which--
(i) is unfair to the owners of trust and
restricted land (and heirs and devisees of
owners); and
[[Page 118 STAT. 1774]]
(ii) makes probate planning more difficult;
(4) a uniform Federal probate code would likely--
(A) reduce the number of fractionated interests in
trust or restricted land;
(B) facilitate efforts to provide probate planning
assistance and advice and create incentives for owners
of trust and restricted land to engage in estate
planning;
(C) facilitate intertribal efforts to produce tribal
probate codes in accordance with section 206 of the
Indian Land Consolidation Act (25 U.S.C. 2205); and
(D) provide essential elements of general probate
law that are not applicable on the date of enactment of
this Act to interests in trust or restricted land; and
(5) the provisions of a uniform Federal probate code and
other forth in this Act should operate to further the policy of
the United States as stated in the Indian Land Consolidated Act
Amendments of 2000, Public Law 106-462, 102, November 7, 2000,
114 Stat. 1992.
SEC. 3. INDIAN PROBATE REFORM.
(a) Nontestamentary Disposition.--Section 207 of the Indian Land
Consolidation Act (25 U.S.C. 2206) is amended by striking subsection (a)
and inserting the following:
``(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 1 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.
[[Page 118 STAT. 1775]]
``(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 surviving
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
owner or 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
[[Page 118 STAT. 1776]]
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 decedent'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
[[Page 118 STAT. 1777]]
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
decedent set forth in clause
(iii). <<NOTE: Applicability.>> 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 the 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
not 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 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) <<NOTE: Deadline.>> 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 item
(bb) or (cc).
``(v) Rule of construction.--This subparagraph
shall not be construed to limit a person's right
to
[[Page 118 STAT. 1778]]
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 pre-deceased 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.--Section 207 of the Indian Land
Consolidation Act (25 U.S.C. 2206) is amended by striking subsection (b)
and inserting the following:
``(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).
[[Page 118 STAT. 1779]]
``(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 personality 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
[[Page 118 STAT. 1780]]
with the applicable law of intestate succession as
provided for in subsection (a).''.
(c) Joint Tenancy; Right of Survivorship.--Section 207(c) of the
Indian Land Consolidation Act (25 U.S.C. 2206(c)) is amended by striking
all that follows the heading, ``Joint Tenancy; Right of Survivorship'',
and inserting the following:
``(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
joint tenancy 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.''.
(d) Rule of Construction.--Section 207 of the Indian Land
Consolidation Act (25 U.S.C. 2206) is amended by adding at the end the
following:
``(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 <<NOTE: Applicability.>> 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
[[Page 118 STAT. 1781]]
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 descendents, such descendents 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) Heir 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.
[[Page 118 STAT. 1782]]
``(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
[[Page 118 STAT. 1783]]
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
[[Page 118 STAT. 1784]]
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
[[Page 118 STAT. 1785]]
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.
[[Page 118 STAT. 1786]]
``(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 a 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.
[[Page 118 STAT. 1787]]
``(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 a 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 and
requirements 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.''.
SEC. 4. PARTITION OF HIGHLY FRACTIONATED INDIAN LANDS.
Section 205 of the Indian Land Consolidation Act (25 U.S.C. 2204)
(as amended by section 6(a)(2)) is amended by adding at the end the
following:
``(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.
[[Page 118 STAT. 1788]]
``(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)
[[Page 118 STAT. 1789]]
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
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
the appraisal and right to appeal.
[[Page 118 STAT. 1790]]
``(VIII) <<NOTE: Deadline.>> 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) <<NOTE: Newspaper.>> publi
shing 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
[[Page 118 STAT. 1791]]
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;
[[Page 118 STAT. 1792]]
``(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)(D)(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) In general.--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
[[Page 118 STAT. 1793]]
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) <<NOTE: Deadline. Notice.>> withi
n 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) <<NOTE: Deadline.>> 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) Interest acquired.--A purchaser of a
parcel of land under this subparagraph 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.
[[Page 118 STAT. 1794]]
``(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--
``(I) 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
``(II) 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) <<NOTE: Notice.>> 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
[[Page 118 STAT. 1795]]
``(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).''.
SEC. 5. OWNER-MANAGED INTERESTS.
The Indian Land Consolidation Act (25 U.S.C. 2201 et seq.) is
amended by adding at the end the following:
``SEC. 221. <<NOTE: 25 USC 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
Reform 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
[[Page 118 STAT. 1796]]
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
[[Page 118 STAT. 1797]]
``(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.''.
SEC. 6. ADDITIONAL AMENDMENTS.
(a) In General.--The Indian Land Consolidation Act (25 U.S.C. 2201
et seq.) is amended--
(1) in the second sentence of section 205(a) (25 U.S.C.
2204(a)), by striking ``over 50 per centum of the undivided
interests'' and inserting ``undivided interests equal to at
least 50 percent of the undivided interest'';
(2) in section 207 (25 U.S.C. 2206), by adding a subsection
at the end as follows:
``(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.
[[Page 118 STAT. 1798]]
``(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 the appraised 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; and
``(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, 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.
[[Page 118 STAT. 1799]]
``(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 personalty if the interest sold would have otherwise
passed to the heir or devisee in trust or restricted status.'';
(3) in section 206 (25 U.S.C. 2205)--
(A) in subsection (a), by striking paragraph (3) and
inserting the following:
``(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
allottee; 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
the spouse or lineal descendant of a 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).''; and
(B) in subsection (c)--
(i) in paragraph (1)--
(I) by striking the paragraph
heading and inserting the following:
``(1) Authority.--
``(A) In general.--'';
(II) in the first sentence of
subparagraph (A) (as redesignated by
clause (i)), by striking ``section
207(a)(6)(A) of this title'' and
inserting ``section 207(b)(2)(A)(ii) of
this title''; and
(III) by striking the last sentence
and inserting the following:
``(B) Transfer.--The Secretary shall transfer
payments received under subparagraph (A) to any person
or persons who would have received an interest in land
if the interest had not been acquired by the Indian
tribe in accordance with this paragraph.''; and
(ii) in paragraph (2)--
(I) in subparagraph (A)--
(aa) by striking the
subparagraph heading and all
that follows through ``Paragraph
(1) shall not apply'' and
inserting the following:
``(A) Inapplicability to certain interests.--
``(i) In general.--Paragraph (1) shall not
apply'';
(bb) in clause (i) (as
redesignated by item (aa)), by
striking ``if, while'' and
inserting the following: ``if--
``(I) while'';
(cc) by striking the period
at the end and inserting ``;
or''; and
(dd) by adding at the end
the following:
[[Page 118 STAT. 1800]]
``(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) limits--
``(I) the ability of an owner of
land to which that clause applies to
mortgage the land; or
``(II) 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.''; and
(II) in subparagraph (B), by
striking ``subparagraph (A)'' and all
that follows through ``207(a)(6)(B) of
this title'' and inserting ``paragraph
(1)'';
(4) in section 207 (25 U.S.C. 2206), by striking subsection
(g);
(5) in section 213 (25 U.S.C. 2212)--
(A) by striking the section heading and inserting
the following:
``SEC. 2212. FRACTIONAL INTEREST ACQUISITION PROGRAM.'';
(B) in subsection (a), by--
(i) adding in paragraph (1) ``or from an heir
during probate in accordance with section 207(p)
(25 U.S.C. 2206(p))'' after ``owner,''; and
(ii) striking ``(2) Authority of secretary.--
'' and all that follows through ``the Secretary
shall submit'' and inserting the following:
``(2) Authority of secretary.--The Secretary shall submit'';
and
(iii) by striking ``whether the program to
acquire fractional interests should be extended or
altered to make resources'' and inserting ``how
the fractional
[[Page 118 STAT. 1801]]
interest acquisition program should be enhanced to
increase the resources made'';
(C) in subsection (b), by striking paragraph (4) and
inserting the following:
``(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 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.'';
(D) in subsection (c)--
(i) in paragraph (1)--
(I) in subparagraph (A), by striking
``at least 5 percent of the'' and
inserting in its place ``an'';
(II) in subparagraph (A), by
inserting ``in such parcel'' following
``the Secretary shall convey an
interest'';
(III) in subparagraph (A), by
striking ``landowner upon payment'' and
all that follows and inserting the
following: ``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.''; and
(IV) in subparagraph (B), by
inserting before the period at the end
the following: ``unless the interest is
subject to a foreclosure of a mortgage
in accordance with the Act of March 29,
1956 (25 U.S.C. 483a)''; and
(ii) in paragraph (3), by striking ``10
percent or more of the undivided interests'' and
inserting ``an undivided interest''; and
(E) by adding at the end of the section:
``(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.'';
(6) in section 214 (25 U.S.C. 2213), by striking subsection
(b) and inserting the following:
``(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)--
[[Page 118 STAT. 1802]]
``(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.--The Secretary may, in
consultation with tribal governments and other entities
described in section 213(b)(3), periodically remove liens
referred to in paragraph (1) from interests in land acquired by
the Secretary.'';
(7) in section 215 (25 U.S.C. 2214), in the last sentence,
by striking ``section 2212 of this title'' and inserting ``this
Act'';
(8) in section 216 (25 U.S.C. 2215)--
(A) in subsection (a), by striking paragraph (2) and
inserting the following:
``(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.''; and
(B) in subsection (b)--
(i) in paragraph (1)--
(I) in the matter preceding
subparagraph (A), by striking ``Subject
to paragraph (2), all'' and inserting
``All'';
[[Page 118 STAT. 1803]]
(II) in subparagraph (A), by
striking ``and'' at the end;
(III) in subparagraph (B), by
striking the period at the end and
inserting ``; and''; and
(IV) by adding at the end the
following:
``(C) be used to acquire undivided interests on the
reservation from which the income was derived.''; and
(ii) by striking paragraph (2) and inserting
the following:
``(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.'';
(9) in section 217 (25 U.S.C. 2216)--
(A) in subsection (b)(1), by striking subparagraph
(B) and inserting a new subparagraph (B) as follows:
``(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.'';
(B) in subsection (e), by striking the matter
preceding paragraph (1), and inserting ``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 written request, be made
available to'';
(C) in subsection (e)(1), by striking ``Indian'';
(D) in subsection (e)(3), by striking ``prospective
applicants for the leasing, use, or consolidation of''
and inserting ``any person that is leasing, using, or
consolidating, or is applying to lease, use, or
consolidate,''; and
(E) by striking subsection (f) and inserting the
following:
``(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
[[Page 118 STAT. 1804]]
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).'';
(10) in section 219(b)(1)(A) (25 U.S.C. 2218(b)(1)(A)), by
striking ``100'' and inserting ``90''; and
(11) in section 219, by adding at the end of the section:
``(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.''.
(b) Definitions.--Section 202 of the Indian Land Consolidation Act
(25 U.S.C. 2201) is amended--
(1) by striking paragraph (2) and inserting the following:
``(2) `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.'';
(2) by striking paragraph (4) and inserting the following:
``(4) `trust or restricted lands' means lands, title to
which is held by the United States in trust 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.''; and
(3) by adding at the end the following:
``(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
[[Page 118 STAT. 1805]]
``(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 descendents within 2 degrees of
consanguinity of an Indian; or
``(C) owners of a trust or 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.''.
(c) Issuance of Patents.--Section 5 of the Act of February 8, 1887
(25 U.S.C. 348), is amended by striking the second proviso and inserting
the following: ``Provided, <<NOTE: Applicability.>> 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:''.
(d) Transfers of Restricted Indian Land.--Section 4 of the Act of
June 18, 1934 (25 U.S.C. 464), is amended in the first proviso by--
(1) striking ``, in accordance with'' and all that follows
through ``or in which the subject matter of the corporation is
located,'';
(2) striking ``, except as provided by the Indian Land
Consolidation Act'' and all that follows through the colon; and
(3) inserting ``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):''.
(e) Estate Planning.--
(1) Conduct of activities.--Section 207(f)(1) of the Indian
Land Consolidation Act (25 U.S.C. 2206) is amended by striking
paragraph (1) and inserting the following:
``(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.--Section 207(f)(2) of the Indian Land
Consolidation Act (25 U.S.C. 2206(f)(2)) is amended by striking
[[Page 118 STAT. 1806]]
``and'' at the end of subparagraph (A), redesignating
subparagraph (B) as subparagraph (D), and adding the following:
``(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''.
(3) Probate code development and legal assistance grants.--
Section 207(f)(3) of the Indian Land Consolidation Act (25
U.S.C. 2206(f)(3)) is amended by striking paragraph (3) and
inserting the following:
``(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;
``(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).''.
(4) Notification to landowners.--Section 207 of the Indian
Land Consolidation Act (25 U.S.C. 2206) is amended by adding at
the end the following:
``(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--
[[Page 118 STAT. 1807]]
``(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).
[[Page 118 STAT. 1808]]
``(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 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.
[[Page 118 STAT. 1809]]
``(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.''.
SEC. 7. ANNUAL NOTICE AND FILING REQUIREMENT FOR OWNERS OF
INTERESTS IN TRUST OR RESTRICTED LANDS.
The Indian Land Consolidation Act (25 U.S.C. 2201 et seq.) is
amended by adding at the end the following:
``SEC. 222. <<NOTE: 25 USC 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.''.
SEC. 8. <<NOTE: 25 USC 2201 note.>> NOTICE; EFFECTIVE DATE.
(a) Notice.--
(1) In general.--Not <<NOTE: Deadline.>> later than 180 days
after the date of enactment of this Act, the Secretary shall
notify Indian tribes and owners of trust or restricted lands of
the amendments made by this Act.
(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 and the amendments made
by this Act, with emphasis on the effect of the
provisions of this Act and the amendments made by this
Act, on the testate disposition and intestate descent of
their interests in trust or restricted land;
(B) estate planning options available to the owners,
including any opportunities for receiving estate
planning assistance or advice;
(C) the use of negotiated sales, gift deeds, land
exchanges, and other transactions for consolidating the
ownership of land; and
(D) a toll-free telephone number to be used for
obtaining information regarding the provisions of this
Act and any trust assets of such owners.
(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--
(A) certify that the requirements of this subsection
have been met; and
[[Page 118 STAT. 1810]]
(B) <<NOTE: Federal Register, publication.>> publish
notice of that certification in the Federal Register.
(b) Effective Date.--Section 207 of the Indian Land Consolidation
Act (25 U.S.C. 2206), except subsections (e) and (f) of that section,
shall not apply to the estate of an individual who dies before the date
that is 1 year after the date on which the Secretary makes the
certification required under subsection (a)(4).
SEC. 9. <<NOTE: 25 USC 2201 note.>> SEVERABILITY.
If any provision of this Act or of any amendment made by this Act,
or the application of any such provision to any person or circumstance,
is held to be invalid for any reason, the remainder of this Act and of
amendments made by this Act, and the application of the provisions and
of the amendments made by this Act to any other person or circumstance
shall not be affected by such holding, except that each of subclauses
(II), (III), and (IV) of section 205(d)(2)(I)(i) is deemed to be
inseverable from the other 2, such that if any 1 of those 3 subclauses
is held to be invalid for any reason, neither of the other 2 of such
subclauses shall be given effect.
SEC. 10. <<NOTE: 25 USC 2201 note.>> REGULATIONS.
The Secretary is authorized to adopt such regulations as may be
necessary to implement the provisions of this Act.
Approved October 27, 2004.
LEGISLATIVE HISTORY--S. 1721:
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HOUSE REPORTS: No. 108-656 (Comm. on Resources).
SENATE REPORTS: No. 108-264 (Comm. on Indian Affairs).
CONGRESSIONAL RECORD, Vol. 150 (2004):
June 2, considered and passed Senate.
Oct. 6, considered and passed House.
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