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Congressional Record—Senate S6367

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Congressional Record—Senate S6367 June 2, 2004 CONGRESSIONAL RECORD — SENATE S6367 3. David Safavian, to be Adminis- sion with respect to the descent of allot- ø‘‘(i) as a life estate without regard to trator for Federal Procurement Policy, ments has resulted in numerous problems af- waste to any person, with the remainder Office of Management and Budget. fecting Indian tribes, members of Indian being devised only in accordance with sub- tribes, and the Federal Government, includ- paragraph (B) or paragraph (1); or 4. Dawn Tisdale, to be Commissioner, ing ø‘‘(ii) except as provided in subparagraph Postal Rate Commission. ø(A) the increasingly fractionated owner- (B), in fee to any person. The PRESIDING OFFICER. Without ship of trust and restricted land as that land ø‘‘(B) LIMITATION.—Any interest in trust or objection, it is so ordered. is inherited by successive generations of restricted land that is subject to section 4 of SUBCOMMITTEE ON CONSTITUTION, CIVIL RIGHTS, owners as tenants in common; the Act of June 18, 1934 (25 U.S.C. 464), may AND PROPERTY RIGHTS ø(B) the application of different rules of in- be devised only in accordance with— ø Mr. GRAHAM of South Carolina. Mr. testate succession to each interest of a dece- ‘‘(i) that section; dent in or to trust or restricted land if that ø‘‘(ii) subparagraph (A)(i); or President, I ask unanimous consent land is located within the boundaries of more ø‘‘(iii) paragraph (1). that the Committee on the Judiciary than 1 State, which application— ø‘‘(3) GENERAL DEVISE OF AN INTEREST IN Subcommittee on Constitution, Civil ø(i) makes probate planning unnecessarily TRUST OR RESTRICTED PERSONAL PROPERTY.— Rights and Property Rights be author- difficult; and ø‘‘(A) TRUST OR RESTRICTED PERSONAL ized to meet to conduct a markup on ø(ii) impedes efforts to provide probate PROPERTY DEFINED.—The term ‘Trust or re- Tuesday, June 2, 2004 at 1:30 p.m. in planning assistance or advice; stricted personal property’ as used in this ø Dirksen Senate Office Building Room (C) the absence of a uniform general pro- section includes— bate code for trust and restricted land, which ø‘‘(i) all funds and securities of any kind 226. makes it difficult for Indian tribes to work which are held in trust in an individual In- Agenda cooperatively to develop tribal probate dian money account or otherwise supervised codes; and for the decedent by the Secretary; and S. J. Res. 4, a joint resolution pro- ø(D) the failure of Federal law to address ø‘‘(ii) absent clear evidence to the con- posing an amendment to the Constitu- or provide for many of the essential elements trary, all personal property permanently af- tion of the United States authorizing of general probate law, either directly or by fixed to trust or restricted lands. Congress to prohibit the physical dese- reference, which— ø‘‘(B) IN GENERAL.—Subject to any applica- ø cration of the flag of the United States. (i) is unfair to the owners of trust and re- ble Federal law relating to the devise or de- stricted land (and heirs and devisees of own- scent of such trust or restricted personal Note: As agreed by Senators CORNYN ers); and property, or a tribal probate code approved and FEINGOLD, only amendments cir- ø(ii) makes probate planning more dif- by the Secretary in accordance with section culated to all other members of the ficult; and 206, the owner of an interest in trust or re- subcommittee by 12:00 noon on Tues- ø(4) a uniform Federal probate code would stricted personal property may devise such day, June 1, 2004 shall be in order. likely— an interest to any person or entity. THE PRESIDING OFFICER. Without ø(A) reduce the number of fractionated in- ø‘‘(C) MAINTENANCE AS TRUST OR RE- objection, it is so ordered. terests in trust or restricted land; STRICTED PERSONAL PROPERTY.—Except as ø(B) facilitate efforts to provide probate provided in paragraph (1)(B), where an inter- f planning assistance and advice; est in trust or restricted personal property is ø(C) facilitate intertribal efforts to devised to a devisee listed in paragraph AMERICAN INDIAN PROBATE produce tribal probate codes in accordance (1)(A), the Secretary shall maintain and con- REFORM ACT OF 2004 with section 206 of the Indian Land Consoli- tinue to manage such interests as trust or Mr. TALENT. Mr. President, I ask dation Act (25 U.S.C. 2205); and restricted personal property. unanimous consent that the Senate ø(D) provide essential elements of general ø‘‘(D) DIRECT DISBURSEMENT AND DISTRIBU- proceed to the immediate consider- probate law that are not applicable on the TION.—In the case of a devise of an interest date of enactment of this Act to interests in in trust or restricted personal property to a ation of Calendar No. 515, S. 1721. trust or restricted land. devisee not listed in paragraph (1)(A), the The PRESIDING OFFICER. The øSEC. 3. INDIAN PROBATE REFORM. Secretary shall directly disburse and dis- clerk will report the bill by title. ø(a) TESTAMENTARY DISPOSITION.—Section tribute such personal property to the devi- The assistant legislative clerk read 207 of the Indian Land Consolidation Act (25 see. as follows: U.S.C. 2206) is amended by striking sub- ø‘‘(4) INELIGIBLE DEVISEES OF TRUST OR RE- section (a) and inserting the following: A bill (S. 1721) to amend the Indian Land STRICTED INTEREST; INVALID WILLS.—Any in- ø‘‘(a) TESTAMENTARY DISPOSITION.— Consolidation Act to improve provisions re- terest in trust or restricted land or personal ø‘‘(1) GENERAL DEVISE OF AN INTEREST IN lating to probate of trust and restricted property that is devised as a trust or re- TRUST OR RESTRICTED LAND.— land, and for other purposes. stricted interest to a devisee not listed in ø‘‘(A) IN GENERAL.—Subject to any applica- subparagraph (A) of paragraph (1) shall de- There being no objection, the Senate ble Federal law relating to the devise or de- scend to the devisee as a fee interest. Any in- proceeded to consider the bill, which scent of trust or restricted land, or a tribal terest in trust or restricted land or personal had been reported from the Committee probate code approved by the Secretary in property that is not disposed of by a valid on Indian Affairs, with an amendment accordance with section 206, the owner of an will shall descend in accordance with the ap- to strike all after the enacting clause interest in trust or restricted land may de- plicable law of intestate succession as pro- vise such an interest to— and insert in lieu thereof the following: vided for in subsection (b).’’. ø‘‘(i) an Indian tribe with jurisdiction over ø(b) NONTESTAMENTARY DISPOSITION.—Sec- (Strike the part shown in black the land; or tion 207 of the Indian Land Consolidation brackets and insert the part shown in ø‘‘(ii) any Indian; or Act (25 U.S.C. 2206) is amended by striking italic.) ø‘‘(iii) any lineal descendant of the tes- subsection (b) and inserting the following: S. 1721 tator; or ø‘‘(b) NONTESTAMENTARY DISPOSITION.— ø‘‘(iv) any person who owns a preexisting ø‘‘(1) RULES OF DESCENT.—Subject to any Be it enacted by the Senate and House of Rep- undivided trust or restricted interest in the applicable Federal law relating to the devise resentatives of the United States of America in same parcel of land; or descent of trust or restricted property, Congress assembled, in trust or restricted status. any interest in trust or restricted property, ø SECTION 1. SHORT TITLE. ø‘‘(B) RULE OF INTERPRETATION.—Any de- including personal property, that is not dis- øThis Act may be cited as the ‘‘American vise of an interest in trust or restricted land posed of by a valid will— Indian Probate Reform Act of 2003’’. or personal property to a devisee listed in ø‘‘(A) shall descend according to a tribal øSEC. 2. FINDINGS. subparagraph (A) shall be considered to be a probate code that is approved in accordance øCongress finds that— devise of the interest in trust or restricted with section 206; or ø(1) the Act of February 8, 1887 (commonly status, unless— ø‘‘(B) in the case of an interest in trust or known as the ‘‘Indian General Allotment ø‘‘(i) language in the will clearly evidences restricted property to which such a code does Act’’) (25 U.S.C. 331 et seq.), which author- the testator’s intent that the interest is to not apply, shall descend in accordance with— ized the allotment of Indian reservations, did vest in the devisee as a fee interest without ø‘‘(i) paragraphs (2) through (4); and not permit Indian allotment owners to pro- restrictions; or ø‘‘(ii) other applicable Federal law. vide for the testamentary disposition of the ø‘‘(ii) the interest devised is a life estate. ø‘‘(2) RULES GOVERNING DESCENT OF ES- land that was allotted to them; ø‘‘(2) DEVISE OF TRUST OR RESTRICTED LAND TATE.— ø(2) that Act provided that allotments AS A LIFE ESTATE OR IN FEE.— ø‘‘(A) SURVIVING SPOUSE.—If there is a sur- would descend according to State law of in- ø‘‘(A) IN GENERAL.—Except as provided viving spouse of the decedent, such spouse testate succession based on the location of under any applicable Federal law, any inter- shall receive trust and restricted property in the allotment; est in trust or restricted land that is not de- the estate as follows: ø(3) the reliance of the Federal Govern- vised in accordance with paragraph (1) may ø‘‘(i) If the decedent is survived by an heir ment on the State law of intestate succes- be devised only— described in subparagraph (B) (i), (ii), (iii), or VerDate May 21 2004 02:18 Jun 03, 2004 Jkt 029060 PO 00000 Frm 00069 Fmt 4624 Sfmt 0634 E:\CR\FM\A02JN6.073 S02PT1 S6368 CONGRESSIONAL RECORD — SENATE June 2, 2004 (iv), the surviving spouse shall receive 1⁄3 of to survive the decedent by at least 120 hours, ø‘‘(C) TIME FOR ASCERTAINING CLASS.—In the trust or restricted personal property of as established by clear and convincing evi- construing a devise to a class other than a the decedent and a life estate without regard dence— class described in subparagraph (B), the class to waste in the interests in trust or re- ø‘‘(A) the individual shall be deemed to shall be ascertained as of the time the devise stricted lands of the decedent.
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