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

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(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. have predeceased the decedent for the pur- is to take effect in enjoyment. The surviving ø‘‘(ii) If there are no heirs described in sub- pose of intestate succession; and issue of any member of the class who is then paragraph (B) (i), (ii), (iii), or (iv), the sur- ø‘‘(B) the heirs of the decedent shall be de- dead shall take by right of representation viving spouse shall receive all of the trust or termined in accordance with this section. the share which their deceased ancestor restricted personal property of the decedent ø‘‘(5) STATUS OF INHERITED INTERESTS.—A would have taken. and a life estate without regard to waste in trust or restricted interest in land or per- ø‘‘(3) MEANING OF ‘DIE WITHOUT ISSUE’ AND the trust or restricted lands. sonal property that descends under the pro- SIMILAR PHRASES.—In any devise under this ø‘‘(iii) The remainder shall pass as set visions of this subsection (not including any chapter, the words ‘die without issue’, ‘die forth in subparagraph (B). interest in land or personal property passing without leaving issue’, ‘have no issue’, or ø ‘‘(B) INDIAN HEIRS.—Where there is no sur- to a surviving spouse under paragraph (2)(A)) words of a similar import shall be construed viving spouse of the decedent, or there is a shall continue to have the same trust or re- to mean that an individual had no lineal de- remainder pursuant to subparagraph (A), the stricted status in the hands of the heir as scendants in his lifetime or at his death, and estate or remainder of the decedent shall, such interest had immediately prior to the not that there will be no lineal descendants subject to subparagraph (A), pass as follows: decedent’s death.’’. at some future time. ø‘‘(i) To the Indian children of the decedent ø (c) Section 207(c) of the Indian Land Con- ø‘‘(4) PERSONS BORN OUT OF WEDLOCK.—In (or if 1 or more of those Indian children do solidation Act (25 U.S.C. 2206 (c)) is amended construing provisions of this chapter relat- not survive the decedent, the Indian children by striking all that follows the heading, ing to lapsed and void devises, and in con- of the deceased child of the decedent, by ‘‘JOINT TENANCY; RIGHT OF SURVIVORSHIP’’, struing a devise to a person or persons de- right of representation, if such Indian chil- and inserting the following: ‘‘If a testator de- scribed by relationship to the testator or to dren of the child survive the decedent) in vises interests in the same parcel of trust or another, a person born out of wedlock shall equal shares. restricted lands to more than 1 person, in the be considered the child of the natural mother ø‘‘(ii) If the property does not pass under absence of express language in the devise to and also of the natural father. clause (i), to the surviving Indian great- the contrary, the devise shall be presumed to ø APSED AND VOID DEVISES AND LEG- grandchildren of the decedent in equal create joint tenancy with the right of survi- ‘‘(5) L shares. vorship in the interests involved.’’. ACIES; SHARES NOT IN RESIDUE.—Where a de- ø‘‘(iii) If the property does not pass under ø(d) RULE OF CONSTRUCTION.—Section 207 of vise of property that is not part of the resid- clause (i) or (ii), to the surviving Indian the Indian Land Consolidation Act (25 U.S.C. uary estate fails or becomes void because— ø brothers and sisters who are full siblings of 2206) is amended by adding at the end the fol- ‘‘(A) the beneficiary has predeceased the the decedent or who are half-siblings by lowing: testator; ø blood and not by marriage, in equal shares. ø‘‘(h) APPLICABLE FEDERAL LAW.— ‘‘(B) the devise has been revoked by the ø‘‘(iv) If the property does not pass under ø‘‘(1) IN GENERAL.—Any references in sub- testator; or ø clause (i), (ii), or (iii), to the Indian parent or sections (a) and (b) to applicable Federal law ‘‘(C) the devise has been disclaimed by the parents of the decedent in equal shares. include— beneficiary; ø‘‘(v) If the property does not pass under ø‘‘(A) Public Law 91–627 (84 Stat. 1874); the property shall, if not otherwise expressly clause (i), (ii), (iii), or (iv), to the Indian ø‘‘(B) Public Law 92–377 (86 Stat. 530); provided for under this Act or a tribal pro- tribe with jurisdiction over the interests in ø‘‘(C) Public Law 92–443 (86 Stat. 744); bate code, pass under the residuary clause, if trust or restricted lands; ø‘‘(D) Public Law 96–274 (94 Stat. 537); and any, contained in the will. except that notwithstanding clause (v), an ø‘‘(E) Public Law 98–513 (98 Stat. 2411). ø‘‘(6) LAPSED AND VOID DEVISES AND LEG- Indian co-owner (including the Indian tribe ø‘‘(2) NO EFFECT ON LAWS.—Nothing in this ACIES; SHARES IN RESIDUE.—When a devise as referred to in clause (v)) of a parcel of trust section amends or otherwise affects the ap- described in paragraph (7) shall be included or restricted land may acquire an interest plication of any law described in paragraph in a residuary clause of the will and shall not that would otherwise descend under that (1), or any other Federal law that provides be available to the issue of the devisee, and clause by paying into the estate of the dece- for the devise and descent of any trust or re- if the disposition shall not be otherwise ex- dent, before the close of the probate of the stricted land located on a specific Indian res- pressly provided for by a tribal probate code, estate, the fair market value of the interest ervation or for the devise and descent of the it shall pass to the other residuary devisees, in the land; if more than 1 Indian co-owner allotted lands of a specific tribe or specific if any, in proportion to their respective offers to pay for such interest, the highest tribes. shares or interests in the residue. bidder shall acquire the interest. ø‘‘(i) RULES OF INTERPRETATION.—In the ab- ø‘‘(7) FAMILY CEMETERY PLOT.—If a family ø‘‘(C) NO INDIAN TRIBE.—If there is no In- sence of a contrary intent, and except as oth- cemetery plot owned by the testator at his dian tribe with jurisdiction over the inter- erwise provided under this Act or a tribal decease is not mentioned in the decedent’s ests in trust or restricted lands that would probate code approved by the Secretary pur- will, the ownership of the plot shall descend otherwise descend under subparagraph (B)(v), suant to section 206, wills shall be construed to his heirs as if he had died intestate. then such interests shall be divided equally as to trust and restricted land and personal ø‘‘(8) AFTER-BORN HEIRS.—A child in gesta- among co-owners of trust or restricted inter- property in accordance with the following tion at the time of decedent’s death will be ests in the parcel; if there are no such co- rules: treated as having survived the decedent if owners, then the Secretary shall accumulate ø‘‘(1) CONSTRUCTION THAT WILL PASSES ALL the child lives at least 120 hours after its and hold such interests in trust or restricted PROPERTY.—A will shall be construed to birth. status for the Indian tribe or tribes from apply to all trust and restricted land and ø‘‘(9) ADVANCEMENTS OF TRUST OR RE- which the decedent descended. personal property which the testator owned STRICTED PERSONAL PROPERTY DURING LIFE- ø‘‘(3) RIGHT OF REPRESENTATION.— at his death, including any such land or TIME; EFFECT ON DISTRIBUTION OF ESTATE.— ø‘‘(A) IN GENERAL.—Subject to subpara- property acquired after the execution of his ø‘‘(A) The trust or restricted personal graph (B)— will. property of a decedent who dies intestate as ø‘‘(i) the interests passing to children and ø‘‘(2) CLASS GIFTS.— to all or a portion of his or her estate, given grandchildren of a decedent under paragraph ø‘‘(A) Terms of relationship that do not during the decedent’s lifetime to an heir of (2) shall be divided into as many equal shares differentiate relationships by blood from the decedent, shall be treated as an advance- as there are surviving children of the dece- those by affinity, such as ‘uncles’, ‘aunts’, ment against the heir’s inheritance, but only dent, deceased children who have died before ‘nieces’ or ‘nephews’, are construed to ex- if the decedent declared in a contempora- the decedent without issue, and deceased clude relatives by affinity. Terms of rela- neous writing, or the heir acknowledged in children who have died before the decedent tionship that do not differentiate relation- writing, that the gift is an advancement or is and have left grandchildren who survive the ships by the half blood from those by the to be taken into account in computing the decedent; and whole blood, such as ‘brothers’, ‘sisters’, division and distribution of the decedent’s ø‘‘(ii) 1 share shall pass to each surviving ‘nieces’, or ‘nephews’, are construed to in- intestate estate. child of the decedent and 1 share shall pass clude both types of relationships. ø‘‘(B) For the purposes of this section, equally divided among the surviving children ø‘‘(B) MEANING OF ‘HEIRS’ AND ‘NEXT OF trust or restricted personal property ad- of a deceased child. KIN,’ ETC; TIME OF ASCERTAINING CLASS.—A vanced during the decedent’s lifetime is val- ø‘‘(B) EXCEPTION FOR HEIRS OF EQUAL CON- devise of trust or restricted land or trust ued as of the time the heir came into posses- SANGUINITY.—Notwithstanding subparagraph funds to the testator’s or another designated sion or enjoyment of the property or as of (A), when the persons entitled to take under person’s ‘heirs’, ‘next of kin’, ‘relatives’, or the time of the decedent’s death, whichever subparagraph (B)(i) of paragraph (2) are all in ‘family’ shall mean those persons, including occurs first. the same degree of consanguinity to the de- the spouse, who would be entitled to take ø‘‘(C) If the recipient of the property cedent, they shall take in equal shares. under the provisions of this Act for nontesta- predeceases the decedent, the property is not ø‘‘(4) SPECIAL RULE RELATING TO SUR- mentary disposition. The class is to be treated as an advancement or taken into ac- VIVAL.—In the case of intestate succession ascertained as of the date of the testator’s count in computing the division and dis- under this subsection, if an individual fails death. tribution of the decedent’s intestate estate

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unless the decedent’s contemporaneous writ- been resolved in accordance with the provi- ø‘‘(iv) DEFINED TERMS.—The terms ‘sub- ing provides otherwise. sions of this paragraph. stantial payments or improvements’ and ø‘‘(10) HEIRS RELATED TO DECEDENT ø‘‘(B) DISMISSAL OR WITHDRAWAL.—Upon ‘substantial period of time’ as used in sub- THROUGH 2 LINES; SINGLE SHARE.—A person dismissal or withdrawal of the charge, or paragraph (A)(iii) (III) and (IV) shall have who is related to the decedent through 2 upon a verdict of not guilty, such land and the meanings given to them in the regula- lines of relationship is entitled to only a sin- funds shall pass as if no charge had been filed tions adopted by the Secretary under the gle share based on the relationship that or made. provisions of this Act. would entitle the person to the larger share. ø‘‘(C) CONVICTION.—Upon conviction of ø‘‘(B) CHILDREN.— ø ø‘‘(j) HEIRSHIP BY KILLING.— such person, the trust and restricted land ‘‘(i) IN GENERAL.—If a testator executed ø‘‘(1) ‘HEIR BY KILLING’ DEFINED.—As used and personal property in the estate shall the will of the testator before the birth or in this subsection, ‘heir by killing’ means pass in accordance with this subsection. adoption of 1 or more children of the tes- any person who participates, either as a ø‘‘(7) BROAD CONSTRUCTION; POLICY OF SUB- tator, and the omission of the children from principal or as an accessory before the fact, SECTION.—This subsection shall not be con- the will is a product of inadvertence rather in the willful and unlawful killing of the de- sidered penal in nature, but shall be con- than an intentional omission, the children cedent. strued broadly in order to effect the policy shall share in the intestate interests of the decedent in trust or restricted land as if the ø‘‘(2) NO ACQUISITION OF PROPERTY BY KILL- that no person shall be allowed to profit by decedent had died intestate. ING.—Subject to any applicable Federal law his own wrong, wherever committed. ø‘‘(ii) ADOPTED HEIRS.—Any person recog- relating to the devise or descent of trust or ø‘‘(k) GENERAL RULES GOVERNING PRO- nized as an heir by virtue of adoption under restricted property, no heir by killing shall BATE.— the Act of July 8, 1940 (25 U.S.C. 372a), shall in any way acquire any interests in trust or ø‘‘(1) SCOPE.—The provisions of this sub- be treated as the child of a decedent under restricted property as the result of the death section shall apply only to estates that are this subsection. of the decedent, but such property shall pass subject to probate under the provisions of ø‘‘(iii) ADOPTED-OUT CHILDREN.— in accordance with this subsection. subsections (a) and (b). ø‘‘(I) IN GENERAL.—For purposes of this ø‘‘(3) DESCENT, DISTRIBUTION, AND RIGHT OF ø‘‘(2) PRETERMITTED SPOUSES AND CHIL- Act, an adopted person shall not be consid- SURVIVORSHIP.—The heir by killing shall be DREN.— ø ered the child or issue of his natural parents, deemed to have predeceased the decedent as ‘‘(A) SPOUSES.— except in distributing the estate of a natural ø to decedent’s interests in trust or restricted ‘‘(i) IN GENERAL.—Except as provided in kin, other than the natural parent, who has property which would have passed from the clause (ii), if the surviving spouse of a tes- maintained a family relationship with the decedent or his estate to the heir by kill- tator married the testator after the testator adopted person. If a natural parent shall ing— executed the will of the testator, the sur- have married the adopting parent, the adopt- ø ‘‘(A) under intestate succession under this viving spouse shall receive the intestate ed person for purposes of inheritance by, chapter; share in trust or restricted land that the from and through him shall also be consid- ø ‘‘(B) under a tribal probate code, unless spouse would have received if the testator ered the issue of such natural parent. otherwise provided for; had died intestate. ø‘‘(II) ELIGIBLE HEIR PURSUANT TO OTHER ø ø ‘‘(C) as the surviving spouse; ‘‘(ii) EXCEPTION.—Clause (i) shall not FEDERAL LAW OR TRIBAL LAW.—Notwith- ø‘‘(D) by devise; apply to an interest in trust or restricted standing the provisions of subparagraph ø‘‘(E) as a reversion or a vested remainder; land where— (B)(iii)(I), other Federal laws and laws of the ø‘‘(F) as a survivorship interest; and ø‘‘(I) the will of a testator is executed be- Indian tribe with jurisdiction over the trust ø‘‘(G) as a contingent remainder or execu- fore the date of enactment of this subpara- or restricted land may otherwise define the tory or other future interest. graph; inheritance rights of adopted-out children. ø‘‘(4) JOINT TENANTS, JOINT OWNERS, AND ø‘‘(II)(aa) the spouse of a testator is a non- ø‘‘(3) DIVORCE.— JOINT OBLIGEES.— Indian; and ø‘‘(A) SURVIVING SPOUSE.— ø‘‘(A) Any trust or restricted land or per- ø‘‘(bb) the testator devised the interests in ø‘‘(i) IN GENERAL.—An individual who is di- sonal property held by only the heir by kill- trust or restricted land of the testator to 1 or vorced from a decedent, or whose marriage ing and the decedent as joint tenants, joint more Indians; to the decedent has been annulled, shall not owners, or joint obligees shall pass upon the ø‘‘(III) it appears, based on an examination be considered to be a surviving spouse un- death of the decedent to his or her estate, as of the will or other evidence, that the will less, by virtue of a subsequent marriage, the if the heir by killing had predeceased the de- was made in contemplation of the marriage individual is married to the decedent at the cedent. of the testator to the surviving spouse; time of death of the decedent. ø‘‘(B) As to trust or restricted property ø‘‘(IV) the will expresses the intention that ø‘‘(ii) SEPARATION.—A decree of separation held jointly by 3 or more persons, including the will is to be effective notwithstanding that does not dissolve a marriage, and termi- both the heir by killing and the decedent, any subsequent marriage; or nate the status of husband and wife, shall any income which would have accrued to the ø‘‘(V)(aa) the testator provided for the not be considered a divorce for the purpose of heir by killing as a result of the death of the spouse by a transfer of funds or property out- this subsection. decedent shall pass to the estate of the dece- side the will; and ø‘‘(iii) NO EFFECT ON ADJUDICATIONS.—Noth- dent as if the heir by killing had predeceased ø‘‘(bb) an intent that the transfer be in lieu ing in clause (i) prevents an entity respon- the decedent and any surviving joint ten- of a testamentary provision is demonstrated sible for adjudicating an interest in trust or ants. by statements of the testator or through a restricted land from giving effect to a prop- ø‘‘(C) Notwithstanding any other provision reasonable inference based on the amount of erty right settlement if 1 of the parties to of this subsection, the decedent’s interest in the transfer or other evidence. the settlement dies before the issuance of a trust or restricted property that is held in a ø‘‘(iii) SPOUSES MARRIED AT THE TIME OF final decree dissolving the marriage of the joint tenancy with the right of survivorship THE WILL.—Should the surviving spouse of parties to the property settlement. shall be severed from the joint tenancy as the testator be omitted from the will of the ø‘‘(B) EFFECT OF SUBSEQUENT DIVORCE ON A though the property held in the joint ten- testator, the surviving spouse shall be treat- WILL OR DEVISE.— ancy were to be severed and distributed ed, for purposes of trust or restricted land or ø‘‘(i) IN GENERAL.—If, after executing a equally among the joint tenants and the de- personal property in the testator’s estate, as will, a testator is divorced or the marriage of cedent’s interest shall pass to his estate; the though there was no will under the provi- the testator is annulled, as of the effective remainder of the interests shall remain in sions of section 207(b)(2)(A) if— date of the divorce or annulment, any dis- joint tenancy with right of survivorship ø‘‘(I) the testator and surviving spouse position of interests in trust or restricted among the surviving joint tenants. were continuously married without legal land made by the will to the former spouse of ø‘‘(5) LIFE ESTATE FOR THE LIFE OF AN- separation for the 10-year period preceding the testator shall be considered to be re- OTHER.—If the estate is held by a third per- the decedent’s death; voked unless the will expressly provides oth- son whose possession expires upon the death ø‘‘(II) the testator and surviving spouse erwise. of the decedent, it shall remain in such per- have a surviving child who is the child of the ø‘‘(ii) PROPERTY.—Property that is pre- son’s hands for the period of the life expect- testator; vented from passing to a former spouse of a ancy of the decedent. ø‘‘(III) the surviving spouse has made sub- decedent under clause (i) shall pass as if the ø‘‘(6) PREADJUDICATION RULE.— stantial payments on or improvements to former spouse failed to survive the decedent. ø‘‘(A) IN GENERAL.—If a person has been the trust or restricted land in such estate; or ø‘‘(iii) PROVISIONS OF WILLS.—Any provi- charged, whether by indictment, informa- ø‘‘(IV) the surviving spouse is under a bind- sion of a will that is considered to be re- tion, or otherwise by the United States, a ing obligation to continue making loan pay- voked solely by operation of this subpara- tribe, or any State, with voluntary man- ments for the trust or restricted land for a graph shall be revived by the remarriage of a slaughter or homicide in connection with a substantial period of time; testator to the former spouse of the testator. decedent’s death, then any and all trust or except that if there is evidence that the tes- ø‘‘(4) NOTICE.— restricted land or personal property that tator adequately provided for the surviving ø‘‘(A) IN GENERAL.—To the maximum ex- would otherwise pass to that person from the spouse and any minor children by a transfer tent practicable, the Secretary shall notify decedent’s estate shall not pass or be distrib- of funds or property outside of the will, this each owner of trust and restricted land of uted by the Secretary until the charges have clause shall not apply. the provisions of this Act.

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ø‘‘(B) COMBINED NOTICES.—The notice under ø‘‘(I) that a proceeding to partition the offer to sell the land by competitive bid for subparagraph (A) may, at the discretion of parcel of land by sale has been commenced; not less than the final appraised value to the the Secretary, be provided with the notice ø‘‘(II) the legal description of the subject highest bidder from among the following eli- required under section 207(g).’’. parcel; gible bidders: øSEC. 4. PARTITION OF HIGHLY FRACTIONATED ø‘‘(III) the owner’s ownership interest in ø‘‘(I) any owner of a trust or restricted in- INDIAN LANDS. the subject parcel; terest in the parcel being sold; øSection 205 of the Indian Land Consolida- ø‘‘(IV) the results of the preliminary ap- ø‘‘(II) the Indian tribe, if any, with juris- tion Act (25 U.S.C. 2204) is amended by add- praisal; diction over the parcel being sold; and ing at the end the following: ø‘‘(V) the owner’s right to request a copy of ø‘‘(III) any member of the Indian tribe de- ø‘‘(c) PARTITION OF HIGHLY FRACTIONATED the preliminary appraisal; scribed in subclause (II); and INDIAN LANDS.— ø‘‘(VI) the owner’s right to comment on ø‘‘(iii) if no bidder described in clause (ii) ø ‘‘(1) APPLICABILITY.—This subsection shall the proposed partition and the preliminary presents a bid that equals or exceeds the ap- be applicable only to parcels of land (includ- appraisal; praised value, provide notice to the owners ing surface and subsurface interests, except ø‘‘(VII) the date by which the owner’s com- of the parcel of land and terminate the parti- with respect to a subsurface interest that ments must be received, which shall not be tion process. has been severed from the surface interest, less than 60 days after the date that the no- ø‘‘(I) DECISION NOT TO SELL.—If the required in which case this subsection shall apply tice is mailed or published under paragraph owners do not consent to the partition by only to the surface interest) which the Sec- (2); and sale of the parcel of land, in accordance with retary has determined, pursuant to para- ø‘‘(VIII) the address for requesting copies paragraph (2)(C), by a date established by the graph (2)(B), to be parcels of highly of the preliminary appraisal and for submit- Secretary, the Secretary shall provide each fractionated Indian land. ting written comments. Indian tribe with jurisdiction over the sub- ø EQUIREMENTS.—Subject to section ‘‘(2) R ø‘‘(ii) MANNER OF SERVICE.— ject land and each owner notice of that fact. 223 of this Act, but notwithstanding any ø ‘‘(I) SERVICE BY MAIL.—The Secretary ø‘‘(3) ENFORCEMENT.— other provision of law, the Secretary shall shall attempt to provide all owners of inter- ø‘‘(A) IN GENERAL.—If a partition is ap- ensure that each partition action meets the ests in the subject parcel with actual notice proved under this subsection and an owner of following requirements: of the partition proceeding by mailing a copy an interest in the parcel of land refuses to ø‘‘(A) REQUEST.—The Secretary shall com- of the written notice described in clause (i) surrender possession in accordance with the mence a process for partitioning a parcel of by first class mail to each such owner at the partition decision, or refuses to execute any land by sale in accordance with the provi- owner’s last known address. In the event the conveyance necessary to implement the par- sions of this subsection upon receipt of an written notice to an owner is returned unde- tition, then any affected owner or the United application by— livered, the Secretary shall, in accordance ø States may— ‘‘(i) the Indian tribe with jurisdiction over with regulations adopted to implement the ø the subject land that owns an undivided in- ‘‘(i) commence a civil action in the United provisions of this section, attempt to obtain States district court for the district in which terest in the parcel of land; or a current address for such owner by inquir- ø‘‘(ii) any person owning an undivided the parcel of land is located; and ing with— ø trust or restricted interest in the parcel of ø ‘‘(ii) request that the court issue an ap- ‘‘(aa) the owner’s relatives, if any are propriate order for the partition of the land land. known; in kind or by sale. ø‘‘(B) DETERMINATION.—Upon receipt of an ø‘‘(bb) the Indian tribe of which the owner ø‘‘(B) FEDERAL ROLE.—With respect to any application pursuant to subparagraph (A), is a member; and civil action brought under subparagraph the Secretary shall determine whether the ø‘‘(cc) the Indian tribe with jurisdiction (A)— subject parcel meets the requirements set over the subject parcel. ø‘‘(i) the United States— forth in section 202(6) (25 U.S.C. 2201(6)) to be ø‘‘(II) SERVICE BY PUBLICATION.—In the ø‘‘(I) shall receive notice of the civil ac- classified as a parcel of highly fractionated event that the Secretary is unable to serve tion; and Indian land. the notice by mail pursuant to subclause (II), ø‘‘(II) may be a party to the civil action; ø‘‘(C) CONSENT REQUIREMENTS.—A parcel of the notice shall be served by publishing the land may be partitioned under this sub- and notice 2 times in a newspaper of general cir- ø section only with the written consent of— culation in the county or counties where the ‘‘(ii) the civil action shall not be dis- ø‘‘(i) the Indian tribe with jurisdiction over subject parcel of land is located. missed, and no relief requested shall be de- nied, on the ground that the civil action is 1 the subject land if such Indian tribe owns an ø‘‘(F) FINAL APPRAISAL.—After reviewing undivided interest in the parcel; and considering comments or information against the United States or that the United ø‘‘(ii) any owner who, for the 3-year period submitted by any owner of an interest in the States is an indispensable party. ø immediately preceding the date on which the parcel in response to the notice required ‘‘(4) REGULATIONS.—The Secretary is au- Secretary receives the application, has— under subparagraph (E), the Secretary may— thorized to adopt such regulations as may be ø‘‘(I) continuously maintained a bona fide ø‘‘(i) modify the preliminary appraisal and, necessary to implement the provisions of residence on the parcel; or as modified, determine it to be the final ap- this subsection.’’. ø‘‘(II) continuously operated a bona fide praisal for the parcel; or øSEC. 5. OWNER-MANAGED INTERESTS. farm, ranch, or other business on the parcel; ø‘‘(ii) determine that preliminary appraisal øThe Indian Land Consolidation Act (25 and should be the final appraisal for the parcel, U.S.C. 2201 et seq.) is amended by adding at ø‘‘(iii) the owners of at least 50 percent of without modifications. the end the following: the undivided interests in the parcel if, based ø‘‘(G) NOTICE TO OWNERS ON DETERMINATION ø‘‘SEC. 221. OWNER-MANAGED INTERESTS. on the final appraisal prepared pursuant to OF FINAL APPRAISAL.—Upon making the de- ø‘‘(a) PURPOSE.—The purpose of this sec- subparagraph (F), the Secretary determines termination under subparagraph (F) the Sec- tion is to provide a means for the co-owners that any person’s undivided trust or re- retary shall provide to each owner of the of trust or restricted interests in a parcel of stricted interest in the parcel has a value in parcel of land and the Indian tribe with ju- land to enter into surface leases of such par- excess of $1,000, except that the Secretary risdiction over the subject land, written no- cel without approval of the Secretary. may consent on behalf of undetermined tice served in accordance with subparagraph ø‘‘(b) MINERAL INTERESTS.—Nothing in this heirs, minors, and legal incompetents having (E)(ii) stating— section shall be construed to limit or other- no legal guardian, and missing owners or ø‘‘(i) the results of the final appraisal; wise affect the application of any Federal owners whose whereabouts are unknown but ø‘‘(ii) the owner’s right to review a copy of law requiring the Secretary to approve min- only after a search for such owners has been the appraisal upon request; and eral leases or other agreements for the devel- completed in accordance with the provisions ø‘‘(iii) that the land will be sold in accord- opment of the mineral interest in trust or re- of this subsection. ance with subparagraph (G) for not less than stricted land. ø‘‘(D) PRELIMINARY APPRAISAL.—After the the final appraised value subject to the con- ø‘‘(c) OWNER MANAGEMENT.— Secretary has determined that the subject sent requirements under paragraph (2)(C). ø‘‘(1) IN GENERAL.—Notwithstanding any parcel is a parcel of highly fractionated In- ø‘‘(H) SALE.—Subject to the requirements provision of Federal law requiring the Sec- dian land pursuant to subparagraph (B), the of paragraph (2)(C), the Secretary shall— retary to approve individual Indian leases or Secretary shall cause a preliminary ap- ø‘‘(i) provide every owner of the parcel of mortgages of individual Indian trust or re- praisal of the subject parcel to be made. land and the Indian tribe with jurisdiction stricted land, where the owners of all of the ø‘‘(E) NOTICE TO OWNERS ON COMPLETION OF over the subject land with notice that— undivided trust or restricted interests in a PRELIMINARY APPRAISAL.—Upon completion ø‘‘(I) the decision to partition by sale is parcel of land have submitted applications to of the preliminary appraisal, the Secretary final; and the Secretary pursuant to subsection (a), and shall give written notice of the requested ø‘‘(II) each owner has the right to appeal the Secretary has approved such applications partition and preliminary appraisal to all the determination of the Secretary to parti- under subsection (d), such owners may, with- owners of undivided interests in the parcel, tion the parcel of land by sale, including the out further approval by the Secretary, do ei- in accordance with the following require- right to appeal the final appraisal; ther of the following with respect to their in- ments: ø‘‘(ii) after providing public notice of the terest in such parcel: ø‘‘(i) CONTENTS OF NOTICE.—The notice re- sale pursuant to regulations adopted by the ø‘‘(A) Enter into a lease of the parcel for quired by this subsection shall state— Secretary to implement this subsection, any purpose authorized by section 1 of the

VerDate May 21 2004 02:18 Jun 03, 2004 Jkt 029060 PO 00000 Frm 00072 Fmt 4624 Sfmt 0634 E:\CR\FM\A02JN6.075 S02PT1 June 2, 2004 CONGRESSIONAL RECORD — SENATE S6371 Act of August 9, 1955 (25 U.S.C. 415(a)), for an all such requests have been delivered to the ø‘‘(C) The Indian tribe with jurisdiction initial term not to exceed 25 years. Secretary. over the interest, or the Secretary on behalf ø‘‘(B) Renew any lease described in para- ø‘‘(3) EFFECT OF REVOCATION.—Revocation of such Indian tribe. graph (1) for 1 renewal term not to exceed 25 of owner-managed status under paragraph (2) ø‘‘(3) REQUEST FOR AUCTION.—No auction years. shall not affect the validity of any lease and sale of an interest in probate shall occur ø‘‘(2) RULE OF CONSTRUCTION.—No such made in accordance with the provisions of under this subsection unless— lease or renewal of a lease shall be effective this section prior to the effective date of the ø‘‘(A) except as provided in paragraph (6), until the owners of all undivided trust or re- revocation, provided that, after such revoca- the heirs or devises of such interest consent stricted interests in the parcel have executed tion becomes effective, the Secretary shall to the sale; and such lease or renewal. be responsible for the collection of, and ac- ø‘‘(B) a person or the Indian tribe eligible ø‘‘(d) APPROVAL OF APPLICATIONS FOR counting for, all future lease revenues accru- to bid on the interest under paragraph (2) OWNER MANAGEMENT.— ing to the trust or restricted interests in the submits a request for the auction prior to ø‘‘(1) IN GENERAL.—Subject to the provi- parcel from and after such effective date. the distribution of the interest to heirs or sions of paragraph (2), the Secretary shall ø‘‘(i) DEFINED TERMS.— devisees of the decedent and in accordance approve an application for owner manage- ø‘‘(1) For purposes of subsection (d)(1), the with any regulations of the Secretary. ment submitted by a qualified applicant pur- term ‘qualified applicant’ means— ø‘‘(4) APPRAISAL AND NOTICE.—Prior to the suant to this section unless the Secretary ø‘‘(A) a person over the age of 18 who owns sale of an interest pursuant to this sub- has reason to believe that the applicant is a trust or restricted interest in a parcel of section, the Secretary shall— submitting the application as the result of land; and ø‘‘(A) appraise the interest; and ø fraud or undue influence. ‘‘(B) the parent or legal guardian of a ø‘‘(B) publish notice of the time and place ø‘‘(2) COMMENCEMENT OF OWNER-MANAGE- minor or incompetent person who owns a of the auction (or the time and place for sub- MENT STATUS.—Notwithstanding the ap- trust or restricted interest in a parcel of mitting sealed bids), a description, and the proval of 1 or more applications pursuant to land. appraised value, of the interest to be sold. ø paragraph (1), no interest in a parcel of trust ‘‘(2) For purposes of this section, the term ø‘‘(5) RIGHTS OF SURVIVING SPOUSE.—Noth- or restricted land shall have owner-manage- ‘owner-managed status’ means, with respect ing in this subsection shall be construed to ment status until applications for all of the to a trust or restricted interest, that the in- diminish or otherwise affect the rights of a trust or restricted interests in such parcel terest— surviving spouse under section 207(b)(2)(A). ø have been submitted and approved by the ‘‘(A) is a trust or restricted interest in a ø‘‘(6) HIGHLY FRACTIONATED INDIAN LANDS.— Secretary pursuant to this section and in ac- parcel of land for which applications cov- Notwithstanding paragraph (3)(A), the con- cordance with regulations adopted pursuant ering all trust or restricted interests in such sent of an heir shall not be required for the to subsection (l). parcel have been submitted to and approved auction and sale of an interest at probate ø‘‘(e) VALIDITY OF LEASES.—A lease of trust by the Secretary pursuant to subsection (d); under this subsection if— ø or restricted interests in a parcel of land ‘‘(B) may be leased without approval of ø‘‘(A) the interest is passing by intestate that is owner-managed under this section the Secretary pursuant to, and in a manner succession; and that violates any requirement or limitation that is consistent with the requirements of, ø‘‘(B) prior to the auction the Secretary set forth in subsection (c) shall be null and this section; and determines that the interest involved is an ø void and unenforceable against the owners of ‘‘(C) no revocation has occurred under interest in a parcel of highly fractionated In- such interests, or against the land, the inter- subsection (h)(2). dian land. ø‘‘(j) SECRETARIAL APPROVAL OF OTHER est or the United States. ø‘‘(7) REGULATIONS.—The Secretary shall TRANSACTIONS.—Except with respect to the ø‘‘(f) LEASE REVENUES.—The Secretary promulgate regulations to implement the specific lease transactions described in para- shall not be responsible for the collection of, provisions of this subsection.’’; graphs (1) and (2) of subsection (c), interests or accounting for, any lease revenues accru- ø(3) in section 206 (25 U.S.C. 2205)— held in owner-managed status under the pro- ing to any interests subject to this section ø visions of this section shall continue to be (A) in subsection (a), by striking para- while such interest is in owner-management subject to all Federal laws requiring the Sec- graph (3) and inserting the following: status under the provisions of this section. ø retary to approve transactions involving ‘‘(3) TRIBAL PROBATE CODES.—Except as ø ‘‘(g) JURISDICTION.— trust or restricted land that would otherwise provided in any applicable Federal law, the ø ‘‘(1) JURISDICTION UNAFFECTED BY STA- apply to such interests. Secretary shall not approve a tribal probate TUS.—The Indian tribe with jurisdiction over ø‘‘(k) EFFECT OF SECTION.—Subject to sub- code, or an amendment to such a code, that an interest in trust or restricted land that sections (c), (f), and (h), nothing in this sec- prohibits the devise of an interest in trust or becomes owner-managed in accordance with tion limits or otherwise affects any author- restricted land by— this section shall continue to have jurisdic- ity or responsibility of the Secretary with ø‘‘(A) an Indian lineal descendant of the tion over the interest in trust or restricted respect to an interest in trust or restricted original allottee; or land to the same extent and in all respects land. ø‘‘(B) an Indian who is not a member of the the tribe had prior to the interest acquiring ø‘‘(l) REGULATIONS.—The Secretary shall Indian tribe with jurisdiction over such an owner managed status. promulgate such regulations as are nec- interest; ø‘‘(2) PERSONS USING LAND.—Any person essary to carry out this section.’’. unless the code provides for— holding, leasing, or otherwise using such in- øSEC. 6. ADDITIONAL AMENDMENTS. ø‘‘(i) the renouncing of interests to eligible terest in land shall be considered to consent ø(a) IN GENERAL.—The Indian Land Con- devisees in accordance with the code; to the jurisdiction of the Indian tribe with solidation Act (25 U.S.C. 2201 et seq.) is ø‘‘(ii) the opportunity for a devisee who is jurisdiction over the interest, including such amended— the spouse or lineal descendant of a testator tribe’s laws and regulations, if any, relating ø(1) in the second sentence of section 205(a) to reserve a life estate without regard to to the use, and any effects associated with (25 U.S.C. 2204(a)), by striking ‘‘over 50 per waste; and the use, of the interest. centum of the undivided interests’’ and in- ø‘‘(iii) payment of fair market value in the ø‘‘(h) CONTINUATION OF OWNER-MANAGED serting ‘‘undivided interests equal to at least manner prescribed under subsection (c)(2).’’; STATUS; REVOCATION.— 50 percent of the undivided interest’’; and ø‘‘(1) IN GENERAL.—Subject to the provi- ø(2) in section 205 (25 U.S.C. 2204), by add- ø(B) in subsection (c)— sions of paragraph (2), after the applications ing subsection (c) as follows: ø(i) in paragraph (1)— of the owners of all of the trust or restricted ø‘‘(c) PURCHASE OPTION AT PROBATE.— ø(I) by striking the paragraph heading and interests in a parcel of land have been ap- ø‘‘(1) IN GENERAL.—Subject to section inserting the following: proved by the Secretary pursuant to sub- 207(b)(2)(A) of this Act (25 U.S.C. ø‘‘(1) AUTHORITY.— section (d), each such interest shall continue 2206(b)(2)(A)), interests in a parcel of trust or ø‘‘(A) IN GENERAL.—’’; in owner-managed status under this section restricted land in the decedent’s estate may ø(II) in the first sentence of subparagraph notwithstanding any subsequent conveyance be purchased at probate in accordance with (A) (as redesignated by clause (i)), by strik- of the interest in trust or restricted status to the provisions of this subsection. ing ‘‘section 207(a)(6)(A) of this title’’ and in- another person or the subsequent descent of ø‘‘(2) SALE OF INTEREST AT MINIMUM FAIR serting ‘‘section 207(a)(2)(A)(ii) of this title’’; the interest in trust or restricted status by MARKET VALUE.—Subject to paragraph (3), and testate or intestate succession to 1 or more the Secretary is authorized to sell trust or ø(III) by striking the last sentence and in- heirs. restricted interests subject to this sub- serting the following: ø‘‘(2) REVOCATION.—Owner-managed status section at no less than fair market value to ø‘‘(B) TRANSFER.—The Secretary shall of an interest may be revoked upon written the highest bidder from among the following transfer payments received under subpara- request of owners (including the parents or eligible bidders: graph (A) to any person or persons who legal guardians of minors or incompetent ø‘‘(A) The heirs taking by intestate succes- would have received an interest in land if the owners) of all trust or restricted interests in sion or the devisees listed in section interest had not been acquired by the Indian the parcel, submitted to the Secretary in ac- 207(a)(1)(A). tribe in accordance with this paragraph.’’; cordance with regulations adopted under ø‘‘(B) All persons who own undivided trust and subsection (l). The revocation shall become or restricted interests in the same parcel of ø(ii) in paragraph (2)— effective as of the date on which the last of land involved in the probate proceeding. ø(I) in subparagraph (A)—

VerDate May 21 2004 02:18 Jun 03, 2004 Jkt 029060 PO 00000 Frm 00073 Fmt 4624 Sfmt 0634 E:\CR\FM\A02JN6.075 S02PT1 S6372 CONGRESSIONAL RECORD — SENATE June 2, 2004 ø(aa) by striking the subparagraph heading ø‘‘(B) administrative proceedings; and remove a lien referred to in paragraph (1) and all that follows through ‘‘Paragraph (1) ø‘‘(C) transactions.’’. upon payment of an amount equal to the shall not apply’’ and inserting the following: ø(D) in subsection (c)— purchase price of that interest in land into ø‘‘(A) INAPPLICABILITY TO CERTAIN INTER- ø(i) in paragraph (1)— the Acquisition Fund created under section ESTS.— ø(I) in subparagraph (A), by striking ‘‘at 2215 of this title, except where the tribe with ø‘‘(i) IN GENERAL.—Paragraph (1) shall not least 5 percent of the’’ and inserting in its jurisdiction over such interest in land au- apply’’; place ‘‘an’’; thorizes the Secretary to continue the lien ø(bb) in clause (i) (as redesignated by item ø(II) in subparagraph (A), by inserting ‘‘in in order to generate additional acquisition (aa)), by striking ‘‘if, while’’ and inserting such parcel’’ following ‘‘the Secretary shall funds. the following: ‘‘if— convey an interest’’; ø‘‘(5) OTHER REMOVAL OF LIENS.—In accord- ø‘‘(I) while’’; ø(III) in subparagraph (A), by striking ance with regulations to be promulgated by ø(cc) by striking the period at the end and ‘‘landowner upon payment’’ and all that fol- the Secretary, and in consultation with trib- inserting ‘‘; or’’; and lows and inserting the following: ‘‘land- al governments and other entities described ø(dd) by adding at the end the following: owner— in section 213(b)(3), the Secretary shall peri- ø‘‘(II)— ø‘‘(i) on payment by the Indian landowner odically remove liens referred to in para- ø‘‘(aa) the interest is part of a family farm of the amount paid for the interest by the graph (1) from interests in land acquired by that is devised to a member of the family of Secretary; or the Secretary.’’; the decedent; and ø‘‘(ii) if— ø(8) in section 216 (25 U.S.C. 2215)— ø‘‘(bb) the devisee agrees that the Indian ø‘‘(I) the Indian referred to in this subpara- ø(A) in subsection (a), by striking para- tribe with jurisdiction over the land will graph provides assurances that the purchase graph (2) and inserting the following: have the opportunity to acquire the interest price will be paid by pledging revenue from ø‘‘(2) collect all revenues received from the for fair market value if the interest is of- any source, including trust resources; and lease, permit, or sale of resources from inter- fered for sale to an entity that is not a mem- ø‘‘(II) the Secretary determines that the ests acquired under section 213 or paid by In- ber of the family of the owner of the land. purchase price will be paid in a timely and dian landowners under section 213.’’; and ø‘‘(ii) RECORDING OF INTEREST.—On request efficient manner.’’; and ø(B) in subsection (b)— ø by an Indian tribe described in clause (IV) in subparagraph (B), by inserting be- ø(i) in paragraph (1)— (i)(II)(bb), a restriction relating to the acqui- fore the period at the end the following: ‘‘un- ø(I) in the matter preceding subparagraph sition by the Indian tribe of an interest in a less the interest is subject to a foreclosure of (A), by striking ‘‘Subject to paragraph (2), family farm involved shall be recorded as a mortgage in accordance with the Act of all’’ and inserting ‘‘All’’; part of the deed relating to the interest in- March 29, 1956 (25 U.S.C. 483a)’’; and ø(II) in subparagraph (A), by striking ø volved. (ii) in paragraph (3), by striking ‘‘10 per- ‘‘and’’ at the end; ø ‘‘(iii) MORTGAGE AND FORECLOSURE.—Noth- cent or more of the undivided interests’’ and ø(III) in subparagraph (B), by striking the ing in clause (i)(II) prevents or limits the inserting ‘‘an undivided interest’’; period at the end and inserting ‘‘; and’’; and ø ability of an owner of land to which that (7) in section 214 (25 U.S.C. 2213), by strik- ø(IV) by adding at the end the following: clause applies to mortgage the land or limit ing subsection (b) and inserting the fol- ø‘‘(C) be used to acquire undivided inter- the right of the entity holding such a mort- lowing: ests on the reservation from which the in- gage to foreclose or otherwise enforce such a ø‘‘(b) APPLICATION OF REVENUE FROM AC- come was derived.’’; and mortgage agreement in accordance with ap- QUIRED INTERESTS TO LAND CONSOLIDATION ø(ii) by striking paragraph (2) and insert- plicable law. PROGRAM.— ing the following: ø‘‘(iv) DEFINITION OF ‘MEMBER OF THE FAM- ø‘‘(1) IN GENERAL.—The Secretary shall ø‘‘(2) USE OF FUNDS.—The Secretary may ILY’.—In this paragraph, the term ‘member have a lien on any revenue accruing to an in- use the revenue deposited in the Acquisition of the family’, with respect to a decedent or terest described in subsection (a) until the Fund under paragraph (1) to acquire some or landowner, means— Secretary provides for the removal of the all of the undivided interests in any parcels ø‘‘(I) a lineal descendant of a decedent or lien under paragraph (3), (4), or (5). ø‘‘(2) REQUIREMENTS.— of land in accordance with section 205.’’; landowner; ø ø ø‘‘(A) IN GENERAL.—Until the Secretary re- (9) in section 217 (25 U.S.C. 2216)— ‘‘(II) a lineal descendant of the grand- ø parent of a decedent or landowner; moves a lien from an interest in land under (A) in subsection (b)(1) by striking sub- ø‘‘(III) the spouse of a descendant or land- paragraph (1)— paragraph (B) and inserting a new subpara- owner described in subclause (I) or (II); and ø‘‘(i) any lease, resource sale contract, graph (B) as follows— ø ø‘‘(IV) the spouse of a decedent or land- right-of-way, or other document evidencing a ‘‘(B) WAIVER OF REQUIREMENT.—The re- owner.’’; transaction affecting the interest shall con- quirement for an estimate of value under ø(4) in subparagraph (B), by striking ‘‘sub- tain a clause providing that all revenue de- subparagraph (A) may be waived in writing paragraph (A)’’ and all that follows through rived from the interest shall be paid to the by an owner of an interest in trust or re- ‘‘207(a)(6)(B) of this title’’ and inserting Secretary; and stricted land either selling, exchanging, or ‘‘paragraph (1)’’; ø‘‘(ii) any revenue derived from any inter- conveying by gift deed for no or nominal ø(5) in section 207 (25 U.S.C. 2206), sub- est acquired by the Secretary in accordance consideration such interest— section (g)(5), by striking ‘‘this section’’ and with section 213 shall be deposited in the ø‘‘(i) to an Indian person who is the own- inserting ‘‘subsections (a) and (b)’’; fund created under section 216. er’s spouse, brother, sister, lineal ancestor, ø(6) in section 213 (25 U.S.C. 2212)— ø‘‘(B) APPROVAL OF TRANSACTIONS.—Not- lineal descendant, or collateral heir; or ø(A) by striking the section heading and withstanding section 16 of the Act of June 18, ø‘‘(ii) to an Indian co-owner or to a tribe inserting the following: 1934 (commonly known as the ‘Indian Reor- with jurisdiction over the subject parcel of ø‘‘SEC. 2212. FRACTIONAL INTEREST ACQUISI- ganization Act’) (25 U.S.C. 476), or any other land, where the grantor owns a fractional in- TION PROGRAM.’’; provision of law, until the Secretary removes terest that represents 5 percent or less of the ø(B) in subsection (a)— a lien from an interest in land under para- parcel.’’. ø ø(i) by striking ‘‘(2) AUTHORITY OF SEC- graph (1), the Secretary may approve a (B) in subsection (e), by striking the mat- RETARY.—’’ and all that follows through ‘‘the transaction covered under this section on be- ter preceding paragraph (1), and inserting Secretary shall submit’’ and inserting the half of an Indian tribe. ‘‘Notwithstanding any other provision of following: ø‘‘(3) REMOVAL OF LIENS AFTER FINDINGS.— law, the names and mailing addresses of the ø‘‘(2) AUTHORITY OF SECRETARY.—The Sec- The Secretary may remove a lien referred to owners of any interest in trust or restricted retary shall submit’’; and in paragraph (1) if the Secretary makes a lands, and information on the location of the ø(ii) by striking ‘‘whether the program to finding that— parcel and the percentage of undivided inter- acquire fractional interests should be ex- ø‘‘(A) the costs of administering the inter- est owned by each individual shall, upon tended or altered to make resources’’ and in- est from which revenue accrues under the written request, be made available to—’’; serting ‘‘how the fractional interest acquisi- lien will equal or exceed the projected reve- ø(C) in subsection (e)(1), by striking ‘‘In- tion program should be enhanced to increase nues for the parcel of land involved; dian’’; the resources made’’; ø‘‘(B) in the discretion of the Secretary, it ø(D) in subsection (e)(3), by striking ‘‘pro- ø(C) in subsection (b), by striking para- will take an unreasonable period of time for spective applicants for the leasing, use, or graph (4) and inserting the following: the parcel of land to generate revenue that consolidation of’’ and insert ‘‘any person ø‘‘(4) shall minimize the administrative equals the purchase price paid for the inter- that is leasing, using, or consolidating, or is costs associated with the land acquisition est; or applying to lease, use, or consolidate,’’; and program through the use of policies and pro- ø‘‘(C) a subsequent decrease in the value of ø(E) by striking subsection (f) and insert- cedures designed to accommodate the vol- land or commodities associated with the par- ing the following: untary sale of interests under the pilot pro- cel of land make it likely that the interest ø‘‘(f) PURCHASE OF LAND BY INDIAN TRIBE.— gram under this section, notwithstanding will be unable to generate revenue that ø‘‘(1) IN GENERAL.—Except as provided in the existence of any otherwise applicable equals the purchase price paid for the inter- paragraph (2), before the Secretary approves policy, procedure, or regulation, through the est in a reasonable time. an application to terminate the trust status elimination of duplicate— ø‘‘(4) REMOVAL OF LIENS UPON PAYMENT INTO or remove the restrictions on alienation ø‘‘(A) conveyance documents; THE ACQUISITION FUND.—The Secretary shall from a parcel of trust or restricted land, the

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Indian tribe with jurisdiction over the parcel inserting the following: ‘Provided, That the ø‘‘(2) STATUTORY CONSTRUCTION.—Nothing shall have the opportunity— rules of intestate succession under the In- in this subsection shall preclude any indi- ø‘‘(A) to match any offer contained in the dian Land Consolidation Act (25 U.S.C. 2201 vidual Indian from obtaining from the Sec- application; or et seq.) (including a tribal probate code ap- retary, upon the request of that individual, ø‘‘(B) in a case in which there is no pur- proved under that Act or regulations pro- any information specified in paragraph (1) chase price offered, to acquire the interest in mulgated under that Act) shall apply to that before the expiration of the 2-year period the parcel by paying the fair market value of land for which patents have been executed specified in paragraph (1). the interest. and delivered:’’. ø‘‘(3) REQUIREMENTS FOR NOTIFICATION.— ø‘‘(2) EXCEPTION FOR FAMILY FARMS.— ø(d) TRANSFERS OF RESTRICTED INDIAN Each notification made under paragraph (1) ø‘‘(A) IN GENERAL.—Paragraph (1) shall not LAND.—Section 4 of the Act of June 18, 1934 shall include information concerning estate apply to a parcel of trust or restricted land (25 U.S.C. 464), is amended in the first pro- planning and land consolidation options that is part of a family farm that is con- viso by— under the provisions of this Act and other veyed to a member of the family of a land- ø(1) striking ‘‘, in accordance with’’ and all applicable Federal law, including informa- owner (as defined in section 206(c)(2)(A)(iv)) that follows through ‘‘or in which the sub- tion concerning— if the conveyance requires that in the event ject matter of the corporation is located,’’; ø‘‘(A) the preparation and execution of that the interest is offered for sale to an en- ø(2) striking ‘‘, except as provided by the wills; tity that is not a member of the family of Indian Land Consolidation Act’’ and all that ø‘‘(B) negotiated sales; the landowner, the Indian tribe with juris- follows through the colon; and ø‘‘(C) gift deeds; diction over the land shall be afforded the ø(3) inserting ‘‘in accordance with the In- ø‘‘(D) exchanges; and opportunity to purchase the interest pursu- dian Land Consolidation Act (25 U.S.C. 2201 ø‘‘(E) life estates without regard to waste. ant to paragraph (1). et seq.) (including a tribal probate code ap- ø‘‘(4) PROHIBITION.—No individual Indian ø ‘‘(B) APPLICABILITY OF OTHER PROVISION.— proved under that Act or regulations pro- may be denied access to information relating Section 206(c)(2)(A) shall apply with respect mulgated under that Act):’’. to land in which that individual has an inter- to the recording and mortgaging of any trust ø(e) ESTATE PLANNING.— est described in this section on the basis of or restricted land referred to in subpara- ø(1) CONDUCT OF ACTIVITIES.—Section section 552a of title 5, United States Code graph (A).’’; and 207(f)(1) of the Indian Land Consolidation Act (commonly referred to as the ‘Privacy Act’). ø(10) in section 219(b)(1)(A) (25 U.S.C. (25 U.S.C. 2206) is amended by striking para- ø 2218(b)(1)(A)), by striking ‘‘100’’ and inserting ‘‘(l) PRIVATE AND FAMILY TRUSTS PILOT graph (1) and inserting the following— ‘‘90’’. PROJECT.— ø‘‘(1) IN GENERAL.— ø ø(b) DEFINITIONS.—Section 202 of the Indian ‘‘(1) DEVELOPMENT PILOT PROJECT.— ø Land Consolidation Act (25 U.S.C. 2201) is ‘‘(A) The activities conducted under this ø‘‘(A) The Secretary shall consult with amended— subsection shall be conducted in accordance tribes, individual landowner organizations, ø(1) by striking paragraph (2) and inserting with any applicable— Indian advocacy organizations, and other in- the following: ø‘‘(i) tribal probate code; or terested parties to— ø‘‘(2) ‘Indian’ means— ø‘‘(ii) tribal land consolidation plan. ø‘‘(i) develop a pilot project for the cre- ø‘‘(A) any person who is a member of any ø‘‘(B) The Secretary shall provide estate ation and management of private and family Indian tribe, is eligible to become a member planning assistance in accordance with this trusts for interests in trust or restricted of any Indian tribe, or is an owner (as of the subsection, to the extent amounts are appro- lands; and date of enactment of the American Indian priated for such purpose.’’. ø‘‘(ii) develop proposed rules, regulations, Probate Reform Act of 2003) of an interest in ø(2) REQUIREMENTS.—Section 207(f) of the and guidelines to implement the pilot trust or restricted land; Indian Land Consolidation Act (25 U.S.C. project. ø‘‘(B) any person meeting the definition of 2206(f)) is amended by striking ‘‘and’’ at the ø‘‘(B) The pilot project shall commence on Indian under the Indian Reorganization Act end of subparagraph (A), redesignating sub- the date of enactment of the American In- (25 U.S.C. 479) and the regulations promul- paragraph (B) as subparagraph (D), and add- dian Probate Reform Act of 2003 and shall gated thereunder; ing the following— continue for 3 years after the date of enact- ø‘‘(C) any person not included in subpara- ø‘‘(B) dramatically increase the use of wills ment of this subsection. graph (A) or (B) who is a lineal descendant and other methods of devise among Indian ø‘‘(2) CHARACTERISTICS OF PRIVATE AND within 3 degrees of a person described in sub- landowners; FAMILY TRUSTS.—For purposes of this sub- paragraph (A); ø‘‘(C) substantially reduce the quantity section and any proposed rules, regulations, ø‘‘(D) an owner of a trust or restricted in- and complexity of Indian estates that pass or guidelines developed under this sub- terest in a parcel of land for purposes of in- intestate through the probate process, while section— heriting another trust or restricted interest protecting the rights and interests of Indian ø‘‘(A) the terms ‘private trust’ and ‘family in such parcel; and landowners; and’’; and trust’ shall both mean trusts created pursu- ø‘‘(E) with respect to the ownership, de- ø(3) by striking ‘‘(3) CONTRACTS.—’’ and in- ant to this subsection for the management vise, or descent of trust or restricted land in serting the following— and administration of interests in trust or the State of California, any person who ø‘‘(3) INDIAN CIVIL LEGAL ASSISTANCE restricted land, held by 1 or more persons, meets the definition of ‘Indians of California’ GRANTS.—In carrying out this section, the which comprise the corpus of a trust, by a contained in the first section of the Act of Secretary shall award grants to nonprofit private trustee subject to the approval of the May 18, 1928 (25 U.S.C. 651), until otherwise entities, as defined under section 501(c)(3) of Secretary; provided by Congress in accordance with sec- the Internal Revenue Code of 1986, which pro- ø‘‘(B) private and family trusts shall be tion 809(b) of the Indian Health Care Im- vide legal assistance services for Indian created and managed in furtherance of the provement Act (25 U.S.C. 1679)(b)).’’; and tribes, individual owners of interests in trust purposes of the Indian Land Consolidation ø(2) by adding at the end the following: or restricted lands, or Indian organizations Act (25 U.S.C. 2201 et seq.); and ø‘‘(6) ‘Parcel of highly fractionated Indian pursuant to Federal poverty guidelines ø‘‘(C) private and family trusts shall not be land’ means a parcel of land that the Sec- which submit an application to the Sec- construed to impair, impede, replace, abro- retary, pursuant to authority under a provi- retary, in such form and manner as the Sec- gate, or modify in any respect the trust du- sion of this Act, determines to have at the retary may prescribe, for the provision of ties or responsibilities of the Secretary, nor time of the determination— civil legal assistance to such Indian tribes, shall anything in this subsection or in any ø‘‘(A)(i) 100 or more but less than 200 co- individual owners, and Indian organizations rules, regulations, or guidelines developed owners of undivided trust or restricted inter- for the development of tribal probate codes, under this subsection enable any private or ests; and for estate planning services or for other pur- family trustee of interests in trust or re- ø‘‘(ii) no undivided trust or restricted in- poses consistent with the services they pro- stricted lands to exercise any powers over terest owned by any 1 person which rep- vide to Indians and Indian tribes.’’; and such interests greater than that held by the resents more than 2 percent of the total un- ø(4) by adding at the end of section 207 (25 Secretary with respect to such interests. divided ownership of the parcel; or U.S.C. 2206) the following: ø‘‘(3) REPORT TO CONGRESS.—Prior to the ø‘‘(B)(i) 200 or more but less than 350 co- ø‘‘(k) NOTIFICATION TO LANDOWNERS.— expiration of the pilot project provided for owners of undivided trust or restricted inter- ø‘‘(1) IN GENERAL.—Not later than 2 years under this subsection, the Secretary shall ests; and after the date of enactment of this Act, the submit a report to Congress stating— ø‘‘(ii) no undivided trust or restricted in- Secretary shall provide to each Indian land- ø‘‘(A) a description of the Secretary’s con- terest owned by any 1 person which rep- owner a report that lists, with respect to sultation with Indian tribes, individual land- resents more than 5 percent of the total un- each tract of trust or restricted land in owner associations, Indian advocacy organi- divided ownership of the parcel; or which the Indian landowner has an interest— zations, and other parties consulted with re- ø‘‘(C) 350 or more co-owners of undivided ø‘‘(A) the location of the tract of land in- garding the development of rules, regula- trust or restricted interests. volved; tions, and/or guidelines for the creation and ø‘‘(7) ‘Person’ means a natural person.’’. ø‘‘(B) the identity of each other co-owner management of private and family trusts ø(c) ISSUANCE OF PATENTS.—Section 5 of of interests in the parcel of land; and over interests in trust and restricted lands; the Act of February 8, 1887 (25 U.S.C. 348), is ø‘‘(C) the percentage of ownership of each ø‘‘(B) the feasibility of accurately tracking amended by striking the second proviso and owner of an interest in the tract. such private and family trusts;

VerDate May 21 2004 02:18 Jun 03, 2004 Jkt 029060 PO 00000 Frm 00075 Fmt 4624 Sfmt 0634 E:\CR\FM\A02JN6.075 S02PT1 S6374 CONGRESSIONAL RECORD — SENATE June 2, 2004 ø‘‘(C) the impact that private and family agencies of the Bureau of Indian Affairs and that the Secretary holds for the previous ap- trusts would have with respect to the accom- to all reservations where land described on parent owner to the unclaimed property ac- plishment of the goals of the Indian Land this list is located and shall cause the list to count described in subsection (f). Consolidation Act (25 U.S.C. 2201 et seq.); and be published in the Federal Register within ø‘‘(f) UNCLAIMED PROPERTY ACCOUNT.— ø‘‘(D) a final recommendation regarding 15 days after the list is prepared. ø‘‘(1) Except as otherwise provided by this whether to adopt the creation of a perma- ø‘‘(3) NOTICE BY MAIL.—In addition to pub- section, the Secretary shall promptly deposit nent private and family trust program as a lishing and distributing the list described in in a special unclaimed property account all management and consolidation measure for paragraph (1), the Secretary shall attempt to funds received under this section. The Sec- interests in trust or restricted lands.’’. provide the persons owning such trust or re- retary shall pay all claims under subsection øSEC. 7. UNCLAIMED AND ABANDONED PROP- stricted interests with actual written notice (g) from this account. The Secretary shall ERTY. that the interest and any associated funds or record the name and last known address of øThe Indian Land Consolidation Act (25 property is presumed abandoned under the each person appearing to be entitled to the U.S.C. 2201 et seq.) (as amended by section 5) provisions of this section. Such notice shall property. is amended by adding at the end the fol- be sent by first class mail to the owner at ø‘‘(2) The Secretary is authorized to use in- lowing: the owner’s last known address and shall in- terest earned on the special unclaimed prop- ø‘‘SEC. 222. UNCLAIMED AND ABANDONED PROP- clude the following: erty account to pay— ERTY. ø‘‘(A) A legal description of the parcel of ø‘‘(A) the administrative costs of conver- ø‘‘(a) INTERESTS PRESUMED ABANDONED.— which the interest is a part. sion of real property under subsection (g); An undivided trust or restricted interest in a ø‘‘(B) A description of the owner’s interest. and parcel of land owned by a person shall be pre- ø‘‘(C) A statement that the owner has not ø‘‘(B) costs of mailing and publication in sumed abandoned and subject to the provi- indicated or expressed an interest in the connection with abandoned property. sions of this section if the Secretary makes trust or restricted interest for a period of 6 ø‘‘(3) The Secretary shall retain a suffi- a determination that— consecutive years and that such interest, cient balance in the account at all times ø ‘‘(1) a period of 6 consecutive years next and any funds in an associated individual In- from which to pay claims duly allowed. All preceding such determination has passed dian money account, is presumed abandoned. other funds shall be available to the Sec- ø during which the person owning such inter- ‘‘(D) A statement that the interest will be retary to use for the purposes of land con- est has not made any indication or expres- appraised and sold for its appraised value un- solidation pursuant to 25 U.S.C. 2212. sion of interest in the trust or restricted in- less the owner responds to the notice within ø‘‘(g) CLAIMS.— terest as set forth in subsection (b); 60 days after the notice is mailed or pub- ø‘‘(1) FILING OF CLAIM.—An individual, or ø ‘‘(2) the person owning the trust or re- lished. the heirs of an individual, may file a claim ø stricted interest was, at all times during the ‘‘(E) A statement that in the event the to recover property or the proceeds of the 6-year period described in paragraph (1), over owner fails to respond and the notice and the conversion of the property on a form pre- the age of 18; and property is sold, the proceeds of such sale scribed by the Secretary. ø‘‘(3) as of the expiration of the 6-year pe- and any funds in any associated individual ø‘‘(2) ALLOWANCE OR DENIAL OF CLAIM.—Not riod described in paragraph (1), such parcel Indian money account will be deposited in an more than 180 days after a claim is filed, the was a parcel of highly fractionated Indian unclaimed property account. Secretary shall allow or deny the claim and ø land. ‘‘(4) SEARCH FOR WHEREABOUTS OF give written notice of the decision to the ø‘‘(b) INDICATORS OF OWNER INTEREST.—For OWNER.—If the notice described in paragraph claimant. If the claim is denied, the Sec- purposes of subsection (a), an indication or (3) is returned undelivered, the Secretary retary shall inform the claimant of the rea- expression of an owner’s interest in the prop- shall attempt to locate the owner by— sons for the denial and specify what addi- erty shall mean the owner or any person act- ø ‘‘(A) searching publicly available records tional evidence is required before the claim ing on behalf of the owner— and Federal records, including telephone and will be allowed. The claimant may then file ø‘‘(1) making a deposit to, withdrawal address directories and using electronic a new claim with the Secretary or maintain from, or inquiry into an individual Indian search methods; an action under this subsection. money account associated with such inter- ø‘‘(B) inquiring with— ø‘‘(3) PAYMENT OF ALLOWED CLAIM.—Not est; ø ‘‘(i) the owner’s relatives, if any are more than 60 days after a claim is allowed, ø‘‘(2) negotiating a Treasury check derived known; the property or the net proceeds of the con- from such interest or account; ø ‘‘(ii) any Indian tribe of which the owner version of the property shall be delivered or ø‘‘(3) providing the Secretary with a valid is a member; and paid by the Secretary to the claimant, to- address; or ø ‘‘(iii) the Indian tribe, if any, with juris- gether with any interest, or other increment ø‘‘(4) communicating with the Secretary diction over the interest; and to which the claimant is entitled under this regarding such interest or account. ø ‘‘(C) if the value of the interest and any section. ø‘‘(c) RELATED PROPERTY.—At the time funds in an associated individual Indian ø that property is presumed to be abandoned ‘‘(4) JUDICIAL REVIEW.—An individual ag- money account exceeds $1,000, engaging an grieved by a decision of the Secretary under under this section, any other property right independent search firm to perform a miss- accrued or accruing to the owner as a result this subsection or whose claim has not been ing person search. acted upon within 180 days may, after ex- of the interest, including funds in an associ- ø‘‘(5) NOTICE BY PUBLICATION.—In the event ated individual Indian money account, that hausting administrative remedies, seek— that the Secretary is unable to locate the ø‘‘(A) judicial review or other appropriate has not previously been presumed abandoned owner pursuant to paragraph (4), the Sec- under this section, also shall be presumed relief against the Secretary in a United retary shall publish a notice not later than States district court, which may include an abandoned. November 30 following the fiscal year in ø order quieting beneficial title in the name of ‘‘(d) ANNUAL LIST OF PROPERTY; NOTICE TO which the property was presumed to be aban- OWNERS.—No later than the first day of No- petitioner whose property was sold by the doned under this section. The notice shall in- Secretary in violation of this section; and vember of each year, the Secretary shall pre- clude the same information required for the pare and distribute a list of names of persons ø‘‘(B) recover reasonable attorneys fees if notice described in paragraph (3) and shall owning property presumed abandoned under he is the prevailing party. be— this section during the preceding fiscal year ø‘‘(h) VOLUNTARY ABANDONMENT.—Any per- ø‘‘(A) published in a newspaper of general and provide notice to such persons in accord- son who is an owner of an interest subject to circulation on or near the apparent owner’s ance with the following requirements: this section may, with the Secretary’s ap- home reservation and near the last known ø‘‘(1) CONTENTS OF ANNUAL LIST.—The list proval, voluntarily abandon that interest to address of the owner; and shall set forth— the benefit of the tribe with jurisdiction over ø‘‘(B) in a form that is likely to attract the ø‘‘(A) the names of all persons owning in- the parcel of land or a co-owner of a trust or attention of the apparent owner of the prop- terests in land and property presumed to be restricted interest in the same parcel of land erty. in accordance with regulations adopted pur- abandoned under this section; ø‘‘(e) CONVERSION OF ABANDONED INTER- ø suant to subsection (j). ‘‘(B) with respect to each person named ESTS.—If, after 2 years from the date the no- on the list, the reservation, if any, and the tice is published under subsection (d)(3), any ø‘‘(i) TRANSFER OF ABANDONED INTERESTS county and State in which the person’s in- such real property or interest therein re- IN LAND.— terest in land is located; mains unclaimed, the Secretary shall ap- ø‘‘(1) Any interest in land acquired under ø‘‘(C) the reservation, if any, the city or praise such property in a manner consistent subsection (e) or (h) over which an Indian town, county and State of the person’s last with section 215 of the Indian Land Consoli- tribe has jurisdiction shall be held in trust known address; and dation Act (25 U.S.C. 2214) and shall purchase by the Secretary for the benefit of that tribe, ø‘‘(D) the name, address, and telephone the property at its appraised value, or sell provided that the tribe may decline any such number of the official or officials within the the property to an Indian tribe with jurisdic- property in its discretion, and provided that Department of the Interior to contact for tion over such property or a person who owns if the tribe declines or does not currently purposes of identifying persons or lands in- an undivided trust or restricted interest in own any interest within that parcel a co- cluded on the list. such property, by competitive bid for not owner with a majority interest shall have ø‘‘(2) DISTRIBUTION OF LIST.—The list shall less than the appraised value. The Secretary the first right of purchase of the property at be distributed to all regional offices and shall then transfer any monetary interest the appraised price.

VerDate May 21 2004 02:18 Jun 03, 2004 Jkt 029060 PO 00000 Frm 00076 Fmt 4624 Sfmt 0634 E:\CR\FM\A02JN6.076 S02PT1 June 2, 2004 CONGRESSIONAL RECORD — SENATE S6375 ø‘‘(2) Any interest in real property ac- change of name and address form may be (5) the provisions of a uniform Federal pro- quired under subsection (e) or (h) that is not used by the owner at any time when his bate code and other forth in this Act should op- subject to the jurisdiction of an Indian tribe name or address changes subsequent to his erate to further the policy of the United States shall be held in trust by the Secretary for all annual filing of the response form. as stated in the Indian Land Consolidated Act of the other co-owners of undivided trust or ø‘‘(b) OWNER RESPONSE.—The owner of an Amendments of 2000, Public Law 106–462, 102, restricted interests in the parcel in propor- interest in trust or restricted land shall file November 7, 2000, 114 Stat. 1992. tion to their respective interests in the prop- the response form upon receipt to confirm or SEC. 3. INDIAN PROBATE REFORM. erty, provided that any owner may decline to update his name and address on an annual (a) NONTESTAMENTARY DISPOSITION.—Section accept such interest, in which case that in- basis. 207 of the Indian Land Consolidation Act (25 ø terest shall be allocated proportionately ‘‘(c) NO RESPONSE; INITIATION OF U.S.C. 2206) is amended by striking subsection among such other co-owners who do not de- SEARCH.—In the event that an owner does (a) and inserting the following: cline. not file the response form or provide the Sec- ‘‘(a) NONTESTAMENTARY DISPOSITION.— ø‘‘(3) The Indian tribe or other subsequent retary with a confirmation or update of his ‘‘(1) RULES OF DESCENT.—Subject to any ap- owner described in paragraph (2) takes such name and address through other means, the plicable Federal law relating to the devise or de- interest free of all claims by the owner who Secretary shall initiate a search in order to scent of trust or restricted property, any trust or abandoned the interest and of all persons ascertain the whereabouts and status of the restricted interest in land or interest in trust claiming through or under such owner. owner.’’. personalty that is not disposed of by a valid ø‘‘(j) REGULATIONS.—The Secretary is au- øSEC. 10. EFFECTIVE DATE. will— thorized to adopt such regulations as may be øThe amendments made by this Act shall ‘‘(A) shall descend according to an applicable necessary to implement the provisions of not apply to the estate of an individual who tribal probate code approved in accordance with this section.’’. dies before the later of— section 206; or øSEC. 8. MISSING HEIRS. ø(1) the date that is 1 year after the date of ‘‘(B) in the case of a trust or restricted inter- øSection 207 of the Indian Land Consolida- enactment of this Act; or est in land or interest in trust personalty to tion Act (25 U.S.C. 2206) is amended by add- ø(2) the date specified in section 207(g)(5) of which a tribal probate code does not apply, ing the following: the Indian Land Consolidation Act (25 U.S.C. shall descend in accordance with— ¿ ø‘‘(m) NOTICE.—Prior to holding a hearing 2206(g)(5)). ‘‘(i) paragraphs (2) through (5); and to determine the heirs to trust or restricted SECTION 1. SHORT TITLE. ‘‘(ii) other applicable Federal law. property, or making a decision determining This Act may be cited as the ‘‘American In- ‘‘(2) RULES GOVERNING DESCENT OF ESTATE.— such heirs, the Secretary shall seek to pro- dian Probate Reform Act of 2004’’. ‘‘(A) SURVIVING SPOUSE.—If there is a sur- vide actual written notice of the proceedings SEC. 2. FINDINGS. viving spouse of the decedent, such spouse shall to all heirs, including notice of the provi- Congress finds that— receive trust and restricted land and trust per- sions of this subsection and of section 207(n) (1) the Act of February 8, 1887 (commonly sonalty in the estate as follows: of this Act. Such efforts shall include— known as the ‘‘Indian General Allotment Act’’) ‘‘(i) If the decedent is survived by 1 or more el- ø‘‘(1) a search of publicly available records (25 U.S.C. 331 et seq.), which authorized the al- igible heirs described in subparagraph (B) (i), and Federal records, including telephone and lotment of Indian reservations, did not permit (ii), (iii), or (iv), the surviving spouse shall re- address directories and including electronic Indian allotment owners to provide for the tes- ceive 1⁄3 of the trust personalty of the decedent search methods; tamentary disposition of the land that was al- and a life estate without regard to waste in the ø‘‘(2) an inquiry with family members and lotted to them; interests in trust or restricted lands of the dece- co-heirs of the property; (2) that Act provided that allotments would dent. ø‘‘(3) an inquiry with the tribal govern- descend according to State law of intestate suc- ‘‘(ii) If there are no eligible heirs described in ment of which the owner is a member, and cession based on the location of the allotment; subparagraph (B) (i), (ii), (iii), or (iv), the sur- the tribal government with jurisdiction over (3) the reliance of the Federal Government on viving spouse shall receive all of the trust per- the property, if any; and the State law of intestate succession with re- sonalty of the decedent and a life estate without ø‘‘(4) if the property is of a value greater spect to the descent of allotments has resulted in regard to waste in the trust or restricted lands than $1,000, an independent firm shall be con- numerous problems affecting Indian tribes, of the decedent. tracted to conduct a missing persons search. members of Indian tribes, and the Federal Gov- ‘‘(iii) The remainder shall pass as set forth in ø‘‘(n) MISSING HEIRS.— ernment, including— subparagraph (B). ø‘‘(1) For purposes of this subsection and (A) the increasingly fractionated ownership of ‘‘(iv) Trust personalty passing to a surviving subsection (m), an heir will be presumed trust and restricted land as that land is inher- spouse under the provisions of this subpara- missing if his whereabouts remain unknown ited by successive generations of owners as ten- graph shall be maintained by the Secretary in 60 days after completion of notice efforts ants in common; an account as trust personalty, but only if such under subsection (m) and they have had no (B) the application of different rules of intes- spouse is Indian. contact with other heirs or the Department tate succession to each interest of a decedent in ‘‘(B) INDIVIDUAL AND TRIBAL HEIRS.—Where for 6 years prior to a hearing or decision to or to trust or restricted land if that land is lo- there is no surviving spouse of the decedent, or ascertain heirs. cated within the boundaries of more than 1 there is a remainder interest pursuant to sub- ø‘‘(2) Before the date for declaring an heir State, which application— paragraph (A), the trust or restricted estate or missing, any person may request an exten- (i) makes probate planning unnecessarily dif- such remainder shall, subject to subparagraphs sion of time to locate an heir. An extension ficult; and (A) and (D), pass as follows: may be granted for good cause. (ii) impedes efforts to provide probate plan- ‘‘(i) To those of the decedent’s children who ø‘‘(3) An heir shall be declared missing ning assistance or advice; are eligible heirs (or if 1 or more of such children (C) the absence of a uniform general probate only after a review of the efforts made and a do not survive the decedent, the children of any code for trust and restricted land, which makes finding that this section has been complied such deceased child who are eligible heirs, by it difficult for Indian tribes to work coopera- with. right of representation, but only if such children tively to develop tribal probate codes; and ø‘‘(4) A missing heir shall be presumed to of the deceased child survive the decedent) in (D) the failure of Federal law to address or have predeceased the decedent for purposes equal shares. provide for many of the essential elements of of descent and devise.’’. ‘‘(ii) If the property does not pass under general probate law, either directly or by ref- clause (i), to those of the decedent’s surviving øSEC. 9. ANNUAL NOTICE AND FILING REQUIRE- erence, which— MENT FOR OWNERS OF INTERESTS great-grandchildren who are eligible heirs, in (i) is unfair to the owners of trust and re- equal shares. IN TRUST OR RESTRICTED LANDS. stricted land (and heirs and devisees of owners); øThe Indian Land Consolidation Act (25 ‘‘(iii) If the property does not pass under and clause (i) or (ii), to the decedent’s surviving par- U.S.C. 2201 et seq.) (as amended by section 7) (ii) makes probate planning more difficult; ent who is an eligible heir, and if both parents is amended by adding at the end the fol- (4) a uniform Federal probate code would like- survive the decedent and are both eligible heirs, lowing: ly— to both parents in equal shares. ø‘‘SEC. 222. ANNUAL NOTICE AND FILING; CUR- (A) reduce the number of fractionated inter- RENT WHEREABOUTS OF INTEREST ests in trust or restricted land; ‘‘(iv) If the property does not pass under OWNERS. (B) facilitate efforts to provide probate plan- clause (i), (ii), or (iii), to those of the decedent’s ø‘‘(a) IN GENERAL.—On an annual basis, the ning assistance and advice and create incentives surviving siblings who are eligible heirs, in Secretary shall send a notice, response form, for owners of trust and restricted land to engage equal shares. and a change of name and address form to in estate planning; ‘‘(v) If the property does not pass under each owner of an interest in trust or re- (C) facilitate intertribal efforts to produce clause (i), (ii), (iii), or (iv), to the Indian tribe stricted land. The notice shall inform owners tribal probate codes in accordance with section with jurisdiction over the interests in trust or re- of their interest and obligation to provide 206 of the Indian Land Consolidation Act (25 stricted lands; the Secretary with a notice of any change in U.S.C. 2205); and except that notwithstanding clause (v), an In- their name or address immediately upon (D) provide essential elements of general pro- dian co-owner (including the Indian tribe re- such change. The response form should in- bate law that are not applicable on the date of ferred to in clause (v)) of a parcel of trust or re- clude a section in which the owner may con- enactment of this Act to interests in trust or re- stricted land may acquire an interest that would firm or update his name and address. The stricted land; and otherwise descend under that clause by paying

VerDate May 21 2004 02:18 Jun 03, 2004 Jkt 029060 PO 00000 Frm 00077 Fmt 4624 Sfmt 6333 E:\CR\FM\A02JN6.076 S02PT1 S6376 CONGRESSIONAL RECORD — SENATE June 2, 2004 into the estate of the decedent, before the close ers, then to the United States, to be sold, and trust or restricted interest in land or trust per- of the probate of the estate, the fair market the proceeds from sale used, in the same manner sonalty that descends under the provisions of value of the interest in the land; if more than 1 provided in subparagraph (C). this subsection shall vest in the heir in the same Indian co-owner offers to pay for such interest, The determination of which person is the oldest trust or restricted status as such interest was the highest bidder shall acquire the interest. eligible heir for inheritance purposes under this held immediately prior to the decedent’s ‘‘(C) NO INDIAN TRIBE.— clause shall be made by the Secretary in the de- death.’’. ‘‘(i) IN GENERAL.—If there is no Indian tribe cedent’s probate proceeding and shall be con- (b) TESTAMENTARY DISPOSITION.—Section 207 with jurisdiction over the interests in trust or re- sistent with the provisions of this Act. of the Indian Land Consolidation Act (25 U.S.C. stricted lands that would otherwise descend ‘‘(iv) EXCEPTIONS.—Notwithstanding clause 2206) is amended by striking subsection (b) and under subparagraph (B)(v), then such interests (iii)— inserting the following: shall be divided equally among co-owners of ‘‘(I)(aa) the heir of an interest under clause ‘‘(b) TESTAMENTARY DISPOSITION.— ‘‘(1) GENERAL DEVISE OF AN INTEREST IN TRUST trust or restricted interests in the parcel; if there (iii), unless the heir is a minor or incompetent OR RESTRICTED LAND.— are no such co-owners, then to the United person, may agree in writing entered into the ‘‘(A) IN GENERAL.—Subject to any applicable States, provided that any such interests in land record of the decedent’s probate proceeding to Federal law relating to the devise or descent of passing to the United States under this subpara- renounce such interest, in trust or restricted sta- trust or restricted land, or a tribal probate code graph shall be sold by the Secretary and the tus, in favor of— approved by the Secretary in accordance with proceeds from such sale deposited into the land ‘‘(AA) any other eligible heir or Indian person section 206, the owner of a trust or restricted in- acquisition fund established under section 216 related to the heir by blood, but in any case (25 U.S.C. 2215) and used for the purposes de- terest in land may devise such interest to— never in favor of more than 1 such heir or per- ‘‘(i) any lineal descendant of the testator; scribed in subsection (b) of that section. son; ‘‘(ii) CONTIGUOUS PARCEL.—If the interests ‘‘(ii) any person who owns a preexisting undi- ‘‘(BB) any co-owner of another trust or re- passing to the United States under this subpara- vided trust or restricted interest in the same par- stricted interest in such parcel of land; or graph are in a parcel of land that is contiguous cel of land; ‘‘(CC) the Indian tribe with jurisdiction over to another parcel of trust or restricted land, the ‘‘(iii) the Indian tribe with jurisdiction over the interest, if any; and Secretary shall give the owner or owners of the the interest in land; or ‘‘(bb) the Secretary shall give effect to such trust or restricted interest in the contiguous par- ‘‘(iv) any Indian; agreement in the distribution of the interest in cel the first opportunity to purchase the interest in trust or restricted status. the probate proceeding; and at not less than fair market value determined in ‘‘(B) RULES OF INTERPRETATION.—Any devise ‘‘(II) the governing body of the Indian tribe accordance with this Act. If more than 1 such of a trust or restricted interest in land pursuant with jurisdiction over an interest in trust or re- owner in the contiguous parcel request to pur- to subparagraph (A) to an Indian or the Indian stricted land that is subject to the provisions of chase the parcel, the Secretary shall sell the tribe with jurisdiction over the interest shall be this subparagraph may adopt a rule of intestate parcel by public auction or sealed bid (as deter- deemed to be a devise of the interest in trust or descent applicable to such interest that differs mined by the Secretary) at not less than fair restricted status. Any devise of a trust or re- from the order of decedent set forth in clause market value to the owner of a trust or re- stricted interest in land to a person who is only (iii). The Secretary shall apply such rule to the stricted interest in the contiguous parcel submit- eligible to be a devisee under clause (i) or (ii) of interest in distributing the decedent’s estate, but ting the highest bid. subparagraph (A) shall be presumed to be a de- only if— ‘‘(D) INTESTATE DESCENT OF SMALL FRAC- vise of the interest in trust or restricted status ‘‘(aa) a copy of the tribal rule is delivered to TIONAL INTERESTS IN LAND.— unless language in such devise clearly evidences the official designated by the Secretary to re- ‘‘(i) GENERAL RULE.—Notwithstanding sub- an intent on the part of the testator that the in- paragraphs (A) and (B), and subject to any ap- ceive copies of tribal rules for the purposes of terest is to pass as a life estate or fee interest in plicable Federal law, any trust or restricted in- this clause; accordance with paragraph (2)(A). ‘‘(bb) the tribal rule provides for the intestate terest in land in the decedent’s estate that is not ‘‘(2) DEVISE OF TRUST OR RESTRICTED LAND AS inheritance of such interest by no more than 1 disposed of by a valid will and represents less A LIFE ESTATE OR IN FEE.— than 5 percent of the entire undivided owner- heir, so that the interest does not further frac- ‘‘(A) IN GENERAL.—Except as provided under ship of the parcel of land of which such interest tionate; any applicable Federal law, any trust or re- is a part, as evidenced by the decedent’s estate ‘‘(cc) the tribal rule does not apply to any in- stricted interest in land that is not devised in inventory at the time of the heirship determina- terest disposed of by a valid will; accordance with paragraph (1)(A) may be de- tion, shall descend in accordance with clauses ‘‘(dd) the decedent died on or after the date vised only— (ii) through (iv). described in subsection (b) of section 8 of the ‘‘(i) as a life estate to any person, with the re- ‘‘(ii) SURVIVING SPOUSE.—If there is a sur- American Indian Probate Act of 2004, or on or mainder being devised only in accordance with viving spouse, and such spouse was residing on after the date on which a copy of the tribal rule subparagraph (B) or paragraph (1); or a parcel of land described in clause (i) at the was delivered to the Secretary pursuant to item ‘‘(ii) except as provided in subparagraph (B), time of the decedent’s death, the spouse shall re- (aa), whichever is later; and as a fee interest without Federal restrictions ceive a life estate without regard to waste in the ‘‘(ee) the Secretary does not make a deter- against alienation to any person who is not eli- decedent’s trust or restricted interest in only mination within 90 days after a copy of the trib- gible to be a devisee under clause (iv) of para- such parcel, and the remainder interest in that al rule is delivered pursuant to item (aa) that graph (1)(A). parcel shall pass in accordance with clause (iii). the rule would be unreasonably difficult to ad- ‘‘(B) INDIAN REORGANIZATION ACT LANDS.— ‘‘(iii) SINGLE HEIR RULE.—Where there is no minister or does not conform with the require- Any interest in trust or restricted land that is life estate created under clause (ii) or there is a ments in item (bb) or (cc). subject to section 4 of the Act of June 18, 1934 remainder interest under that clause, the trust ‘‘(v) RULE OF CONSTRUCTION.—This subpara- (25 U.S.C. 464), may be devised only in accord- or restricted interest or remainder interest that graph shall not be construed to limit a person’s ance with— is subject to this subparagraph shall descend, in right to devise any trust or restricted interest by ‘‘(i) that section; trust or restricted status, to— way of a valid will in accordance with sub- ‘‘(ii) subparagraph (A)(i); or ‘‘(I) the decedent’s surviving child, but only if section (b). ‘‘(iii) paragraph (1)(A); such child is an eligible heir; and if 2 or more ‘‘(3) RIGHT OF REPRESENTATION.—If, under provided that nothing in this section or in sec- surviving children are eligible heirs, then to the this subsection, all or any part of the estate of tion 4 of the Act of June 18, 1934 (25 U.S.C. 464), oldest of such children; a decedent is to pass to children of a deceased shall be construed to authorize the devise of any ‘‘(II) if the interest does not pass under sub- child by right of representation, that part is to interest in trust or restricted land that is subject clause (I), the decedent’s surviving grandchild, be divided into as many equal shares as there to section 4 of that Act to any person as a fee but only if such grandchild is an eligible heir; are living children of the decedent and pre-de- interest under subparagraph (A)(ii). and if 2 or more surviving grandchildren are eli- ceased children who left issue who survive the ‘‘(3) GENERAL DEVISE OF AN INTEREST IN TRUST gible heirs, then to the oldest of such grand- decedent. Each living child of the decedent, if PERSONALTY.— children; any, shall receive 1 share, and the share of each ‘‘(A) TRUST PERSONALITY DEFINED.—The term ‘‘(III) if the interest does not pass under sub- pre-deceased child shall be divided equally ‘trust personalty’ as used in this section in- clause (I) or (II), the decedent’s surviving great among the pre-deceased child’s children. cludes all funds and securities of any kind grandchild, but only if such great grandchild is ‘‘(4) SPECIAL RULE RELATING TO SURVIVAL.—In which are held in trust in an individual Indian an eligible heir; and if 2 or more surviving great the case of intestate succession under this sub- money account or otherwise supervised by the grandchildren are eligible heirs, then to the old- section, if an individual fails to survive the de- Secretary. est of such great grandchildren; cedent by at least 120 hours, as established by ‘‘(B) IN GENERAL.—Subject to any applicable ‘‘(IV) if the interest does not pass under sub- clear and convincing evidence— Federal law relating to the devise or descent of clause (I), (II), or (III), the Indian tribe with ju- ‘‘(A) the individual shall be deemed to have such trust personalty, or a tribal probate code risdiction over the interest; or predeceased the decedent for the purpose of in- approved by the Secretary in accordance with ‘‘(V) if the interest does not pass under sub- testate succession; and section 206, the owner of an interest in trust clause (I), (II), or (III), and there is no such In- ‘‘(B) the heirs of the decedent shall be deter- personalty may devise such an interest to any dian tribe to inherit the property under sub- mined in accordance with this section. person or entity. clause (IV), the interest shall be divided equally ‘‘(5) STATUS OF INHERITED INTERESTS.—Except ‘‘(C) MAINTENANCE AS TRUST PERSONALTY.—In among co-owners of trust or restricted interests as provided in paragraphs (2) (A) and (D) re- the case of a devise of an interest in trust per- in the parcel; and if there are no such co-own- garding the life estate of a surviving spouse, a sonalty to a person or Indian tribe eligible to be

VerDate May 21 2004 02:18 Jun 03, 2004 Jkt 029060 PO 00000 Frm 00078 Fmt 4624 Sfmt 6333 E:\CR\FM\A02JN6.076 S02PT1 June 2, 2004 CONGRESSIONAL RECORD — SENATE S6377 a devisee under paragraph (1)(A), the Secretary tiate relationships by the half blood from those ‘‘(C) as the surviving spouse; shall maintain and continue to manage such in- by the whole blood, such as ‘brothers’, ‘sisters’, ‘‘(D) by devise; terests as trust personalty. ‘nieces’, or ‘nephews’, are construed to include ‘‘(E) as a reversion or a vested remainder; ‘‘(D) DIRECT DISBURSEMENT AND DISTRIBU- both types of relationships. ‘‘(F) as a survivorship interest; and TION.—In the case of a devise of an interest in ‘‘(B) MEANING OF ‘HEIRS’ AND ‘NEXT OF KIN’, ‘‘(G) as a contingent remainder or executory trust personalty to a person or Indian tribe not ETC.; TIME OF ASCERTAINING CLASS.—A devise of or other future interest. eligible to be a devisee under paragraph (1)(A), trust or restricted interest in land or an interest ‘‘(4) JOINT TENANTS, JOINT OWNERS, AND JOINT the Secretary shall directly disburse and dis- in trust personalty to the testator’s or another OBLIGEES.— tribute such personalty to the devisee. designated person’s ‘heirs’, ‘next of kin’, ‘rel- ‘‘(A) Any trust or restricted land or trust per- ‘‘(4) INVALID DEVISES AND WILLS.— atives’, or ‘family’ shall mean those persons, in- sonalty held by only the heir by killing and the ‘‘(A) LAND.—Any trust or restricted interest in cluding the spouse, who would be entitled to decedent as joint tenants, joint owners, or joint land that is not devised in accordance with take under the provisions of this Act for non- obligees shall pass upon the death of the dece- paragraph (1) or (2) or that is not disposed of by testamentary disposition. The class is to be dent to his or her estate, as if the heir by killing a valid will shall descend in accordance with ascertained as of the date of the testator’s had predeceased the decedent. the applicable law of intestate succession as death. ‘‘(B) As to trust or restricted land or trust per- provided for in subsection (a). ‘‘(C) TIME FOR ASCERTAINING CLASS.—In con- sonalty held jointly by 3 or more persons, in- ‘‘(B) PERSONALTY.—Any trust personalty that struing a devise to a class other than a class de- cluding both the heir by killing and the dece- is not disposed of by a valid will shall descend scribed in subparagraph (B), the class shall be dent, any income which would have accrued to in accordance with the applicable law of intes- ascertained as of the time the devise is to take the heir by killing as a result of the death of the tate succession as provided for in subsection effect in enjoyment. The surviving issue of any decedent shall pass to the estate of the decedent (a).’’. member of the class who is then dead shall take as if the heir by killing had predeceased the de- (c) JOINT TENANCY; RIGHT OF SURVIVORSHIP.— by right of representation the share which their cedent and any surviving joint tenants. Section 207(c) of the Indian Land Consolidation deceased ancestor would have taken. ‘‘(C) Notwithstanding any other provision of Act (25 U.S.C. 2206(c)) is amended by striking all ‘‘(3) MEANING OF ‘DIE WITHOUT ISSUE’ AND this subsection, the decedent’s trust or restricted that follows the heading, ‘‘Joint Tenancy; Right SIMILAR PHRASES.—In any devise under this interest land or trust personalty that is held in of Survivorship’’, and inserting the following: chapter, the words ‘die without issue’, ‘die with- a joint tenancy with the right of survivorship ‘‘(1) PRESUMPTION OF JOINT TENANCY.—If a out leaving issue’, ‘have no issue’, or words of shall be severed from the joint tenancy as testator devises trust or restricted interests in a similar import shall be construed to mean that though the property held in the joint tenancy the same parcel of land to more than 1 person, an individual had no lineal descendants in his were to be severed and distributed equally in the absence of clear and express language in lifetime or at his death, and not that there will among the joint tenants and the decedent’s in- the devise stating that the interest is to pass to be no lineal descendants at some future time. terest shall pass to his estate; the remainder of ‘‘(4) PERSONS BORN OUT OF WEDLOCK.—In con- the devisees as tenants in common, the devise the interests shall remain in joint tenancy with struing provisions of this chapter relating to shall be presumed to create a joint tenancy with right of survivorship among the surviving joint lapsed and void devises, and in construing a de- the right of survivorship in the interests in- tenants. vise to a person or persons described by relation- ‘‘(5) LIFE ESTATE FOR THE LIFE OF ANOTHER.— volved. ship to the testator or to another, a person born ‘‘(2) EXCEPTION.—Paragraph (1) shall not If the estate is held by a third person whose pos- out of wedlock shall be considered the child of apply to any devise of an interest in trust or re- session expires upon the death of the decedent, the natural mother and also of the natural fa- stricted land where the will in which such de- it shall remain in such person’s hands for the ther. period of time following the decedent’s death vise is made was executed prior to the date that ‘‘(5) LAPSED DEVISES.—Subject to the provi- is 1 year after the date on which the Secretary sions of subsection (b), where the testator de- equal to the life expectancy of the decedent but publishes the certification required by section vises or bequeaths a trust or restricted interest for the killing. 8(a)(4) of the American Indian Probate Reform in land or trust personalty to the testator’s ‘‘(6) PREADJUDICATION RULE.— ‘‘(A) IN GENERAL.—If a person has been Act of 2004.’’. grandparents or to the lineal descendent of a charged, whether by indictment, information, or (d) RULE OF CONSTRUCTION.—Section 207 of grandparent, and the devisee or legatee dies be- otherwise by the United States, a tribe, or any the Indian Land Consolidation Act (25 U.S.C. fore the testator leaving lineal descendents, State, with voluntary manslaughter or homicide 2206) is amended by adding at the end the fol- such descendents shall take the interest so de- in connection with a decedent’s death, then any lowing: vised or bequeathed per stirpes. ‘‘(h) APPLICABLE FEDERAL LAW.— ‘‘(6) VOID DEVISES.—Except as provided in and all trust or restricted land or trust person- ‘‘(1) IN GENERAL.—Any references in sub- paragraph (5), and if the disposition shall not alty that would otherwise pass to that person sections (a) and (b) to applicable Federal law be otherwise expressly provided for by a tribal from the decedent’s estate shall not pass or be include— probate code approved under section 206 (25 distributed by the Secretary until the charges ‘‘(A) Public Law 91–627 (84 Stat. 1874); U.S.C. 2205), if a devise other than a residuary have been resolved in accordance with the pro- ‘‘(B) Public Law 92–377 (86 Stat. 530); devise of a trust or restricted interest in land or visions of this paragraph. ‘‘(C) Public Law 92–443 (86 Stat. 744); trust personalty fails for any reason, such inter- ‘‘(B) DISMISSAL OR WITHDRAWAL.—Upon dis- ‘‘(D) Public Law 96–274 (94 Stat. 537); and est shall become part of the residue and pass, missal or withdrawal of the charge, or upon a ‘‘(E) Public Law 98–513 (98 Stat. 2411). subject to the provisions of subsection (b), to the verdict of not guilty, such land and personalty ‘‘(2) NO EFFECT ON LAWS.—Nothing in this Act other residuary devisees, if any, in proportion to shall pass as if no charge had been filed or amends or otherwise affects the application of their respective shares or interests in the res- made. any law described in paragraph (1), or any ‘‘(C) CONVICTION.—Upon conviction of such idue. other Federal law that pertains to— ‘‘(7) FAMILY CEMETERY PLOT.—If a family person, and the exhaustion of all appeals, if ‘‘(A) trust or restricted land located on 1 or cemetery plot owned by the testator at his de- any, the trust and restricted land and trust per- more specific Indian reservations that are ex- cease is not mentioned in the decedent’s will, sonalty in the estate shall pass in accordance pressly identified in such law; or the ownership of the plot shall descend to his with this subsection. ‘‘(B) the allotted lands of 1 or more specific heirs as if he had died intestate. ‘‘(7) BROAD CONSTRUCTION; POLICY OF SUB- Indian tribes that are expressly identified in ‘‘(j) HEIRSHIP BY KILLING.— SECTION.—This subsection shall not be consid- such law. ‘‘(1) HEIR BY KILLING DEFINED.—As used in ered penal in nature, but shall be construed ‘‘(i) RULES OF INTERPRETATION.—In the ab- this subsection, ‘heir by killing’ means any per- broadly in order to effect the policy that no per- sence of a contrary intent, and except as other- son who knowingly participates, either as a son shall be allowed to profit by his own wrong, wise provided under this Act, applicable Federal principal or as an accessory before the fact, in wherever committed. law, or a tribal probate code approved by the the willful and unlawful killing of the decedent. ‘‘(k) GENERAL RULES GOVERNING PROBATE.— Secretary pursuant to section 206, wills shall be ‘‘(2) NO ACQUISITION OF PROPERTY BY KILL- ‘‘(1) SCOPE.—Except as provided under appli- construed as to trust and restricted land and ING.—Subject to any applicable Federal law re- cable Federal law or a tribal probate code ap- trust personalty in accordance with the fol- lating to the devise or descent of trust or re- proved under section 206, the provisions of this lowing rules: stricted land, no heir by killing shall in any subsection shall govern the probate of estates ‘‘(1) CONSTRUCTION THAT WILL PASSES ALL way acquire any trust or restricted interests in containing trust and restricted interests in land PROPERTY.—A will shall be construed to apply land or interests in trust personalty as the result or trust personalty. to all trust and restricted land and trust person- of the death of the decedent, but such property ‘‘(2) PRETERMITTED SPOUSES AND CHILDREN.— alty which the testator owned at his death, in- shall pass in accordance with this subsection. ‘‘(A) SPOUSES.— cluding any such land or personalty acquired ‘‘(3) DESCENT, DISTRIBUTION, AND RIGHT OF ‘‘(i) IN GENERAL.—Except as provided in after the execution of his will. SURVIVORSHIP.—The heir by killing shall be clause (ii), if the surviving spouse of a testator ‘‘(2) CLASS GIFTS.— deemed to have predeceased the decedent as to married the testator after the testator executed ‘‘(A) NO DIFFERENTIATION BETWEEN RELATION- decedent’s trust or restricted interests in land or the will of the testator, the surviving spouse SHIP BY BLOOD AND RELATIONSHIP BY AFFIN- trust personalty which would have passed from shall receive the intestate share in the dece- ITY.—Terms of relationship that do not differen- the decedent or his estate to such heir— dent’s trust or restricted land and trust person- tiate relationships by blood from those by affin- ‘‘(A) under intestate succession under this alty that the spouse would have received if the ity, such as ‘uncles’, ‘aunts’, ‘nieces’, or ‘neph- section; testator had died intestate. ews’, are construed to exclude relatives by affin- ‘‘(B) under a tribal probate code, unless other- ‘‘(ii) EXCEPTION.—Clause (i) shall not apply to ity. Terms of relationship that do not differen- wise provided for; a trust or restricted interest land where—

VerDate May 21 2004 02:18 Jun 03, 2004 Jkt 029060 PO 00000 Frm 00079 Fmt 4624 Sfmt 6333 E:\CR\FM\A02JN6.076 S02PT1 S6378 CONGRESSIONAL RECORD — SENATE June 2, 2004 ‘‘(I) the will of a testator is executed before is married to the decedent at the time of death in trust personalty through intestate succession the date of enactment of this subparagraph; of the decedent. or devise, either in full or subject to the reserva- ‘‘(II)(aa) the spouse of a testator is a non-In- ‘‘(ii) SEPARATION.—A decree of separation tion of a life estate (where the interest is an in- dian; and that does not dissolve a marriage, and terminate terest in land), in accordance with subpara- ‘‘(bb) the testator devised the interests in trust the status of husband and wife, shall not be graph (B), by filing a signed and acknowledged or restricted land of the testator to 1 or more In- considered a divorce for the purpose of this sub- declaration with the probate decisionmaker dians; section. prior to entry of a final probate order. No inter- ‘‘(III) it appears, based on an examination of ‘‘(iii) NO EFFECT ON ADJUDICATIONS.—Nothing est so renounced or disclaimed shall be consid- the will or other evidence, that the will was in clause (i) shall prevent the Secretary from ered to have vested in the renouncing or dis- made in contemplation of the marriage of the giving effect to a property right settlement relat- claiming heir or devisee, and the renunciation testator to the surviving spouse; ing to a trust or restricted interest in land or an or disclaimer shall not be considered to be a ‘‘(IV) the will expresses the intention that the interest in trust personalty if 1 of the parties to transfer or gift of the renounced or disclaimed will is to be effective notwithstanding any sub- the settlement dies before the issuance of a final interest. sequent marriage; or decree dissolving the marriage of the parties to ‘‘(B) ELIGIBLE RECIPIENTS OF RENOUNCED OR ‘‘(V)(aa) the testator provided for the spouse the property settlement. DISCLAIMED INTERESTS; NOTICE TO RECIPIENTS.— by a transfer of funds or property outside the ‘‘(B) EFFECT OF SUBSEQUENT DIVORCE ON A ‘‘(i) INTERESTS IN LAND.—A trust or restricted will; and WILL OR DEVISE.— interest in land may be renounced or disclaimed ‘‘(bb) an intent that the transfer be in lieu of ‘‘(i) IN GENERAL.—If, after executing a will, a only in favor of— testator is divorced or the marriage of the tes- ‘‘(I) an eligible heir; a testamentary provision is demonstrated by ‘‘(II) any person who would have been eligible statements of the testator or through a reason- tator is annulled, as of the effective date of the divorce or annulment, any disposition of trust to be a devisee of the interest in question pursu- able inference based on the amount of the trans- ant to subsection (b)(1)(A) (but only in cases fer or other evidence. or restricted interests in land or of trust person- alty made by the will to the former spouse of the where the renouncing person is a devisee of the ‘‘(iii) SPOUSES MARRIED AT THE TIME OF THE interest under a valid will); or testator shall be considered to be revoked unless WILL.—Should the surviving spouse of the tes- ‘‘(III) the Indian tribe with jurisdiction over the will expressly provides otherwise. tator be omitted from the will of the testator, the the interest in question; surviving spouse shall be treated, for purposes ‘‘(ii) PROPERTY.—Property that is prevented and the interest so renounced shall pass to its of trust or restricted land or trust personalty in from passing to a former spouse of a decedent recipient in trust or restricted status. the testator’s estate, in accordance with the pro- under clause (i) shall pass as if the former ‘‘(ii) TRUST PERSONALTY.—An interest in trust visions of section 207(a)(2)(A), as though there spouse failed to survive the decedent. personalty may be renounced or disclaimed in was no will but only if— ‘‘(iii) PROVISIONS OF WILLS.—Any provision of favor of any person who would be eligible to be ‘‘(I) the testator and surviving spouse were a will that is considered to be revoked solely by a devisee of such an interest under subsection continuously married without legal separation operation of this subparagraph shall be revived (b)(3) and shall pass to the recipient in accord- for the 5-year period preceding the decedent’s by the remarriage of a testator to the former ance with the provisions of that subsection. death; spouse of the testator. ‘‘(iii) UNAUTHORIZED RENUNCIATIONS AND DIS- ‘‘(II) the testator and surviving spouse have a ‘‘(4) AFTER-BORN HEIRS.—A child in gestation CLAIMERS.—Unless renounced or disclaimed in surviving child who is the child of the testator; at the time of decedent’s death will be treated as favor of a person or Indian tribe eligible to re- ‘‘(III) the surviving spouse has made substan- having survived the decedent if the child lives at ceive the interest in accordance with the provi- tial payments toward the purchase of, or im- least 120 hours after its birth. sions of this subparagraph, a renounced or dis- provements to, the trust or restricted land in ‘‘(5) ADVANCEMENTS OF TRUST PERSONALTY claimed interest shall pass as if the renunciation such estate; or DURING LIFETIME; EFFECT ON DISTRIBUTION OF or disclaimer had not been made. ‘‘(IV) the surviving spouse is under a binding ESTATE.— ‘‘(C) ACCEPTANCE OF INTEREST.—A renunci- ‘‘(A) The trust personalty of a decedent who obligation to continue making loan payments ation or disclaimer of an interest filed in accord- dies intestate as to all or a portion of his or her for the trust or restricted land for a substantial ance with this paragraph shall be considered estate, given during the decedent’s lifetime to a period of time; accepted when implemented in a final order by person eligible to be an heir of the decedent a decisionmaker, and shall thereafter be irrev- except that, if there is evidence that the testator under subsection (b)(2)(B), shall be treated as ocable. No renunciation or disclaimer of an in- adequately provided for the surviving spouse an advancement against the heir’s inheritance, terest shall be included in such order unless the and any minor children by a transfer of funds but only if the decedent declared in a contem- recipient of the interest has been given notice of or property outside of the will, this clause shall poraneous writing, or the heir acknowledged in the renunciation or disclaimer and has not re- not apply. writing, that the gift is an advancement or is to fused to accept the interest. All disclaimers and ‘‘(B) CHILDREN.— be taken into account in computing the division renunciations filed and implemented in probate ‘‘(i) IN GENERAL.—If a testator executed the and distribution of the decedent’s intestate es- orders made effective prior to the date of enact- will of the testator before the birth or adoption tate. ment of the American Indian Probate Reform of 1 or more children of the testator, and the ‘‘(B) For the purposes of this section, trust Act of 2004 are hereby ratified. omission of the children from the will is a prod- personalty advanced during the decedent’s life- ‘‘(D) RULE OF CONSTRUCTION.—Nothing in this uct of inadvertence rather than an intentional time is valued as of the time the heir came into paragraph shall be construed to allow the re- omission, the children shall share in the trust or possession or enjoyment of the property or as of nunciation of an interest that is subject to the restricted interests in land and trust personalty the time of the decedent’s death, whichever oc- provisions of section 207(a)(2)(D) (25 U.S.C. as if the decedent had died intestate. curs first. 2206(a)(2)(D)) in favor of more than 1 person. ‘‘(ii) ADOPTED HEIRS.—Any person recognized ‘‘(C) If the recipient of the trust personalty ‘‘(9) CONSOLIDATION AGREEMENTS.— as an heir by virtue of adoption under the Act predeceases the decedent, the property shall not ‘‘(A) IN GENERAL.—During the pendency of of July 8, 1940 (25 U.S.C. 372a), shall be treated be treated as an advancement or taken into ac- probate, the decisionmaker is authorized to ap- as the child of a decedent under this subsection. count in computing the division and distribution prove written consolidation agreements effecting ‘‘(iii) ADOPTED-OUT CHILDREN.— of the decedent’s intestate estate unless the de- exchanges or gifts voluntarily entered into be- ‘‘(I) IN GENERAL.—For purposes of this Act, an cedent’s contemporaneous writing provides oth- tween the decedent’s eligible heirs or devisees, to adopted person shall not be considered the child erwise. consolidate interests in any tract of land in- or issue of his natural parents, except in distrib- ‘‘(6) HEIRS RELATED TO DECEDENT THROUGH 2 cluded in the decedent’s trust inventory. Such uting the estate of a natural kin, other than the LINES; SINGLE SHARE.—A person who is related agreements may provide for the conveyance of natural parent, who has maintained a family to the decedent through 2 lines of relationship is interests already owned by such heirs or devi- relationship with the adopted person. If a nat- entitled to only a single share of the trust or re- sees in such tracts, without having to comply ural parent shall have married the adopting stricted land or trust personalty in the dece- with the Secretary’s rules and requirements oth- parent, the adopted person for purposes of in- dent’s estate based on the relationship that erwise applicable to conveyances by deed of heritance by, from and through him shall also would entitle such person to the larger share. trust or restricted interests in land. be considered the issue of such natural parent. ‘‘(7) NOTICE.— ‘‘(B) EFFECTIVE.—An agreement approved ‘‘(II) ELIGIBLE HEIR PURSUANT TO OTHER FED- ‘‘(A) IN GENERAL.—To the maximum extent under subparagraph (A) shall be considered ERAL LAW OR TRIBAL LAW.—Notwithstanding the practicable, the Secretary shall notify each final when implemented in an order by a deci- provisions of subparagraph (B)(iii)(I), other owner of trust and restricted land of the provi- sionmaker. The final probate order shall direct Federal laws and laws of the Indian tribe with sions of this Act. any changes necessary to the Secretary’s land jurisdiction over the trust or restricted interest ‘‘(B) COMBINED NOTICES.—The notice under records, to reflect and implement the terms of in land may otherwise define the inheritance subparagraph (A) may, at the discretion of the the approved agreement. rights of adopted-out children. Secretary, be provided with the notice required ‘‘(C) EFFECT ON PURCHASE OPTION AT PRO- ‘‘(3) DIVORCE.— under subsection (a) of section 8 of the Amer- BATE.—Any interest in trust or restricted land ‘‘(A) SURVIVING SPOUSE.— ican Indian Probate Reform Act of 2004. that is subject to a consolidation agreement ‘‘(i) IN GENERAL.—An individual who is di- ‘‘(8) RENUNCIATION OR DISCLAIMER OF INTER- under this paragraph or section 207(e) (25 vorced from a decedent, or whose marriage to ESTS.— U.S.C. 2206(e)) shall not be available for pur- the decedent has been annulled, shall not be ‘‘(A) IN GENERAL.—Any person 18 years of age chase under section 207(p) (25 U.S.C. 2206(p)) considered to be a surviving spouse unless, by or older may renounce or disclaim an inherit- unless the decisionmaker determines that the virtue of a subsequent marriage, the individual ance of a trust or restricted interest in land or agreement should not be approved.’’.

VerDate May 21 2004 02:18 Jun 03, 2004 Jkt 029060 PO 00000 Frm 00080 Fmt 4624 Sfmt 6333 E:\CR\FM\A02JN6.076 S02PT1 June 2, 2004 CONGRESSIONAL RECORD — SENATE S6379 SEC. 4. PARTITION OF HIGHLY FRACTIONATED an Indian tribe or that of the owner requesting under this clause, whichever is later. In the INDIAN LANDS. the partition) has a value in excess of $1,500. event the written notice to an owner is returned Section 205 of the Indian Land Consolidation Any consent required by this clause must be in undelivered, the Secretary shall attempt to ob- Act (25 U.S.C. 2204) (as amended by section writing and acknowledged before a notary pub- tain a current address for such owner by con- 6(a)(2)) is amended by adding at the end the fol- lic (or other official authorized to make ac- ducting a reasonable search (including a rea- lowing: knowledgments), and shall be approved by Sec- sonable search of records maintained by local, ‘‘(d) PARTITION OF HIGHLY FRACTIONATED IN- retary unless the Secretary has reason to believe state, Federal and tribal governments and agen- DIAN LANDS.— that the consent was obtained as a result of cies) and by inquiring with the Indian tribe ‘‘(1) APPLICABILITY.—This subsection shall be fraud or undue influence. with jurisdiction over the subject parcel, and, if applicable only to parcels of land (including ‘‘(ii) CONSENT BY THE SECRETARY ON BEHALF different from that tribe, the Indian tribe of surface and subsurface interests, except with re- OF CERTAIN INDIVIDUALS.—For the purposes of which the owner is a member, and, if successful spect to a subsurface interest that has been sev- clause (i)(III), the Secretary may consent on be- in locating any such owner, send written notice ered from the surface interest, in which case this half of— by certified mail in accordance with this sub- subsection shall apply only to the surface inter- ‘‘(I) undetermined heirs of trust or restricted clause. est) which the Secretary has determined, pursu- interests and owners of such interests who are ‘‘(II) NOTICE BY PUBLICATION.—The Secretary ant to paragraph (2)(B), to be parcels of highly minors and legal incompetents having no par- shall give notice by publication of the partition fractionated Indian land. ents or legal guardian; and proceedings to all owners that the Secretary was ‘‘(2) REQUIREMENTS.—Each partition action ‘‘(II) missing owners or owners of trust or re- unable to serve pursuant to subclause (I), and under this subsection shall be conducted by the to unknown heirs and assigns by— Secretary in accordance with the following re- stricted interests whose whereabouts are un- known, but only after a search for such owners ‘‘(aa) publishing the notice described in clause quirements: (i) at least 2 times in a newspaper of general cir- ‘‘(A) APPLICATION.—Upon receipt of any pay- has been completed in accordance with the pro- visions of this subsection. culation in the county or counties where the ment or bond required under subparagraph (B), subject parcel of land is located or, if there is an the Secretary shall commence a process for par- ‘‘(E) APPRAISAL.—After the Secretary has de- termined that the subject parcel is a parcel of Indian tribe with jurisdiction over the parcel of titioning a parcel of land by sale in accordance land and that tribe publishes a tribal newspaper with the provisions of this subsection upon re- highly fractionated Indian land pursuant to subparagraph (C), the Secretary shall cause to or newsletter at least once every month, 1 time ceipt of an application by— in such newspaper of general circulation and 1 ‘‘(i) the Indian tribe with jurisdiction over the be made, in accordance with the provisions of this Act for establishing fair market value, an time in such tribal newspaper or newsletter; subject land that owns an undivided interest in ‘‘(bb) posting such notice in a conspicuous the parcel of land; or appraisal of the fair market value of the subject parcel. place in the tribal headquarters or administra- ‘‘(ii) any person owning an undivided interest tion building (or such other tribal building de- ‘‘(F) NOTICE TO OWNERS ON COMPLETION OF in the parcel of land who is eligible to bid at the termined by the Secretary to be most appropriate APPRAISAL.—Upon completion of the appraisal, sale of the parcel pursuant to subclause (II), for giving public notice) of the Indian tribe with (III), or (IV) of subparagraph (I)(i); the Secretary shall give notice of the requested partition and appraisal to all owners of undi- jurisdiction over the parcel of land, if any; and provided that no such application shall be valid ‘‘(cc) in addition to the foregoing, in the Sec- vided interests in the parcel, in accordance with or considered if it is received by the Secretary retary’s discretion, publishing notice in any principles of due process. Such notice shall in- prior to the date that is 1 year after the date on other place or means that the Secretary deter- clude the following requirements: which notice is published pursuant to section mines to be appropriate. ‘‘(i) WRITTEN NOTICE.—The Secretary shall at- 8(a)(4) of the American Indian Probate Reform ‘‘(G) REVIEW OF COMMENTS ON APPRAISAL.— tempt to give each owner written notice of the Act of 2004. ‘‘(i) IN GENERAL.—After reviewing and consid- partition action stating the following: ‘‘(B) COSTS OF SERVING NOTICE AND PUBLICA- ering comments or information timely submitted ‘‘(I) That a proceeding to partition the parcel TION.—The costs of serving and publishing no- by any owner of an interest in the parcel in re- of land by sale has been commenced. tice under subparagraph (F) shall be borne by sponse to the notice required under subpara- ‘‘(II) The legal description of the subject par- the applicant. Upon receiving written notice graph (F), the Secretary may, consistent with cel. from the Secretary, the applicant must pay to the provisions of this Act for establishing fair ‘‘(III) The owner’s ownership interest in the the Secretary an amount determined by the Sec- market value— retary to be the estimated costs of such service subject parcel as evidenced by the Secretary’s ‘‘(I) order a new appraisal; or of notice and publication, or furnish a sufficient records as of the date that owners are deter- ‘‘(II) approve the appraisal; mined in accordance with clause (ii). bond for such estimated costs within the time provided that if the Secretary orders a new ap- ‘‘(IV) The results of the appraisal. stated in the notice, failing which, unless an ex- praisal under subclause (I), notice of the new ‘‘(V) The owner’s right to receive a copy of tension is granted by the Secretary, the Sec- appraisal shall be given as specified in clause the appraisal upon written request. retary shall not be required to commence the (ii). ‘‘(VI) The owner’s right to comment on or ob- partition process under subparagraph (A) and ‘‘(ii) NOTICE.—Notice shall be given— ject to the proposed partition and the appraisal. may deny the application. The Secretary shall ‘‘(I) in accordance with subparagraph (H), ‘‘(VII) That the owner must timely comment have the discretion and authority in any case to where the new appraisal results in a higher on or object in writing to the proposed partition waive either the payment or the bond (or any valuation of the land; or portion of such payment or bond) otherwise re- or the appraisal, in order to receive notice of ap- ‘‘(II) in accordance with subparagraph (F)(ii), quired by this subparagraph, upon making a de- proval of the appraisal and right to appeal. where the new appraisal results in a lower valu- termination that such waiver will further the ‘‘(VIII) The date by which the owner’s writ- ation of the land. policies of this Act. ten comments or objections must be received, ‘‘(H) NOTICE TO OWNERS OF APPROVAL OF AP- ‘‘(C) DETERMINATION.—Upon receipt of an ap- which shall not be less than 90 days after the PRAISAL AND RIGHT TO APPEAL.—Upon making plication pursuant to subparagraph (A), the date that the notice is mailed under this clause the determination under subparagraph (G), the Secretary shall determine whether the subject or last published under clause (ii)(II). Secretary shall provide to the Indian tribe with parcel meets the requirements set forth in sec- ‘‘(IX) The address for requesting copies of the jurisdiction over the subject land and to all per- tion 202(6) (25 U.S.C. 2201(6)) to be classified as appraisal and for submitting written comments sons who submitted written comments on or ob- a parcel of highly fractionated Indian land. or objections. jections to the proposed partition or appraisal, a ‘‘(D) CONSENT REQUIREMENTS.— ‘‘(X) The name and telephone number of the written notice to be served on such tribe and ‘‘(i) IN GENERAL.—A parcel of land may be official to be contacted for purposes of obtaining persons by certified mail. Such notice shall partitioned under this subsection only if the ap- information regarding the proceeding, including state— plicant obtains the written consent of— the time and date of the auction of the land or ‘‘(i) the results of the appraisal; ‘‘(I) the Indian tribe with jurisdiction over the the date for submitting sealed bids. ‘‘(ii) that the owner has the right to review a subject land if such Indian tribe owns an undi- ‘‘(XI) Any other information the Secretary copy of the appraisal upon request; vided interest in the parcel; deems to be appropriate. ‘‘(iii) that the land will be sold for not less ‘‘(II) any owner who, for the 3-year period im- ‘‘(ii) MANNER OF SERVICE.— than the appraised value, subject to the consent mediately preceding the date on which the Sec- ‘‘(I) SERVICE BY CERTIFIED MAIL.—The Sec- requirements under paragraph (2)(D); retary receives the application, has retary shall use due diligence to provide all ‘‘(iv) the time of the sale or for submitting bids ‘‘(aa) continuously maintained a bona fide owners of interests in the subject parcel, as evi- under subparagraph (I); residence on the parcel; or denced by the Secretary’s records at the time of ‘‘(v) that the owner has the right, under the ‘‘(bb) operated a bona fide farm, ranch, or the determination under subparagraph (C), with Secretary’s regulations governing administrative other business on the parcel; and actual notice of the partition proceedings by appeals, to pursue an administrative appeal ‘‘(III) the owners (including parents of minor mailing a copy of the written notice described in from— owners and legal guardians of incompetent clause (i) by certified mail, restricted delivery, to ‘‘(I) the determination that the land may be owners) of at least 50 percent of the undivided each such owner at the owner’s last known ad- partitioned by sale under the provisions of this interests in the parcel, but only in cases where dress. For purposes of this subsection, owners section; and the Secretary determines that, based on the shall be determined from the Secretary’s land ‘‘(II) the Secretary’s order approving the ap- final appraisal prepared pursuant to subpara- title records as of the date of the determination praisal; graph (F), any 1 owner’s total undivided inter- under subparagraph (C) or a date that is not ‘‘(vi) the date by which an administrative ap- est in the parcel (not including the interest of more than 90 days prior to the date of mailing peal must be taken, a citation to the provisions

VerDate May 21 2004 02:18 Jun 03, 2004 Jkt 029060 PO 00000 Frm 00081 Fmt 4624 Sfmt 6333 E:\CR\FM\A02JN6.076 S02PT1 S6380 CONGRESSIONAL RECORD — SENATE June 2, 2004 of the Secretary’s regulations that will govern cordance with the regulations adopted to imple- ‘‘(B) the grant or loan funds provided shall the owner’s appeal, and any other information ment this section, the owner delivers to the Sec- only be applied toward the purchase price of the required by such regulations to be given to par- retary a written notice of intent to exercise the parcel of land sold. ties affected by adverse decisions of the Sec- owner’s rights under this clause; and ‘‘(5) REGULATIONS.—The Secretary is author- retary; ‘‘(IV) such owner tenders the amount of the ized to adopt such regulations as may be nec- ‘‘(vii) in cases where the Secretary determines purchase price required under this clause— essary to implement the provisions of this sub- that any person’s undivided trust or restricted ‘‘(aa) not less than 30 days after the date of section. Such regulations shall include provi- interest in the parcel exceeds $1,500 pursuant to the auction or time for receiving sealed bids; sions for giving notice of sales to prospective paragraph (2)(D)(iii), that the Secretary has au- and purchasers eligible to submit bids at sales con- thority to consent to the partition on behalf of ‘‘(bb) in accordance with any requirements of ducted under paragraph (2)(I).’’. undetermined heirs of trust or restricted inter- the regulations promulgated to implement this SEC. 5. OWNER-MANAGED INTERESTS. ests in the parcel and owners of such interests section. The Indian Land Consolidation Act (25 U.S.C. whose whereabouts are unknown; and ‘‘(iv) INTEREST ACQUIRED.—A purchaser of a 2201 et seq.) is amended by adding at the end ‘‘(viii) any other information the Secretary parcel of land under this subparagraph shall the following: deems to be appropriate. acquire title to the parcel in trust or restricted ‘‘SEC. 221. OWNER-MANAGED INTERESTS. ‘‘(I) SALE TO ELIGIBLE PURCHASER.— status, free and clear of any and all claims of ‘‘(a) PURPOSE.—The purpose of this section is ‘‘(i) IN GENERAL.—Subject to clauses (ii) and title or ownership of all persons or entities (not to provide a means for the co-owners of trust or (iii) and the consent requirements of paragraph including the United States) owning or claiming restricted interests in a parcel of land to enter (2)(D), the Secretary shall, after providing no- to own an interest in such parcel prior to the into surface leases of such parcel for certain tice to owners under subparagraph (H), includ- time of sale. purposes without approval of the Secretary. ing the time and place of sale or for receiving ‘‘(J) PROCEEDS OF SALE.— ‘‘(b) MINERAL INTERESTS.—Nothing in this sealed bids, at public auction or by sealed bid ‘‘(i) Subject to clauses (ii) and (iii), the Sec- section shall be construed to limit or otherwise (whichever of such methods of sale the Sec- retary shall distribute the proceeds of sale of a affect the application of any Federal law requir- retary determines to be more appropriate under parcel of land under the provisions of this sec- ing the Secretary to approve mineral leases or the circumstances) sell the parcel of land by tion to the owners of interests in such parcel in other agreements for the development of the competitive bid for not less than the final ap- proportion to their respective ownership inter- mineral interest in trust or restricted land. praised fair market value to the highest bidder ests. ‘‘(c) OWNER MANAGEMENT.— from among the following eligible bidders: ‘‘(ii) Proceeds attributable to the sale of trust ‘‘(1) IN GENERAL.—Notwithstanding any pro- ‘‘(I) The Indian tribe, if any, with jurisdiction or restricted interests shall be maintained in ac- vision of Federal law requiring the Secretary to over the trust or restricted interests in the parcel counts as trust personalty. approve individual Indian leases of individual being sold. ‘‘(iii) Proceeds attributable to the sale of inter- Indian trust or restricted land, where the own- ‘‘(II) Any person who is a member, or is eligi- ests of owners whose whereabouts are unknown, ers of all of the undivided trust or restricted in- ble to be a member, of the Indian tribe described of undetermined heirs, and of other persons terests in a parcel of land have submitted appli- in subclause (I). whose ownership interests have not been re- cations to the Secretary pursuant to subsection ‘‘(III) Any person who is a member, or is eligi- corded shall be held by the Secretary until such (a), and the Secretary has approved such appli- ble to be a member, of an Indian tribe but not owners, heirs, or other persons have been deter- cations under subsection (d), such owners may, of the tribe described in subclause (I), but only mined, at which time such proceeds shall be dis- without further approval by the Secretary, enter if such person already owns an undivided inter- tributed in accordance with clauses (i) and (ii). into a lease of the parcel for agricultural pur- est in the parcel at the time of sale. ‘‘(K) LACK OF BIDS OR CONSENT.— poses for a term not to exceed 10 years. ‘‘(2) RULE OF CONSTRUCTION.—No such lease ‘‘(IV) Any lineal descendent of the original al- ‘‘(i) LACK OF BIDS.—If no bidder described in lottee of the parcel who is a member or is eligible subparagraph (I) presents a bid that equals or shall be effective until it has been executed by to be a member of an Indian tribe or, with re- exceeds the final appraised value, the Secretary the owners of all undivided trust or restricted interests in the parcel. spect to a parcel located in the State of Cali- may either— ‘‘(d) APPROVAL OF APPLICATIONS FOR OWNER fornia that is not within an Indian tribe’s res- ‘‘(I) purchase the parcel of land for its ap- MANAGEMENT.— praised fair market value on behalf of the In- ervation or not otherwise subject to the jurisdic- ‘‘(1) IN GENERAL.—Subject to the provisions of tion of an Indian tribe, who is a member, or eli- dian tribe with jurisdiction over the land, sub- paragraph (2), the Secretary shall approve an gible to be a member, of an Indian tribe or owns ject to the lien and procedures provided under application for owner management submitted by a trust or restricted interest in the parcel. section 214(b) (25 U.S.C. 2213(b)); or a qualified applicant pursuant to this section ‘‘(ii) RIGHT TO MATCH HIGHEST BID.—If the ‘‘(II) terminate the partition process. unless the Secretary has reason to believe that highest bidder is a person who is only eligible to ‘‘(ii) LACK OF CONSENT.—If an applicant fails the applicant is submitting the application as bid under clause (i)(III), the Indian tribe that to obtain any applicable consent required under the result of fraud or undue influence. No such has jurisdiction over the parcel, if any, shall the provisions of subparagraph (D) by the date application shall be valid or considered if it is have the right to match the highest bid and ac- established by the Secretary prior to the pro- received by the Secretary prior to the date that quire the parcel, but only if— posed sale, the Secretary may either extend the is 1 year after the date on which notice is pub- ‘‘(I) prior to the date of the sale, the gov- time for obtaining any such consent or deny the lished pursuant to section 8(a)(4) of the Amer- erning body of such tribe has adopted a tribal request for partition. ican Indian Probate Reform Act of 2004. law or resolution reserving its right to match the ‘‘(3) ENFORCEMENT.— ‘‘(2) COMMENCEMENT OF OWNER-MANAGED STA- N GENERAL bids of such nonmember bidders in partition ‘‘(A) I .—If a partition is approved TUS.—Notwithstanding the approval of 1 or sales under this subsection and delivered a copy under this subsection and an owner of an inter- more applications pursuant to paragraph (1), no of such law or resolution to the Secretary; and est in the parcel of land refuses to surrender trust or restricted interest in a parcel of land ‘‘(II) the parcel is not acquired under clause possession in accordance with the partition de- shall acquire owner-managed status until appli- (iii). cision, or refuses to execute any conveyance cations for all of the trust or restricted interests ‘‘(iii) RIGHT TO PURCHASE.—Any person who is necessary to implement the partition, then any in such parcel of land have been submitted to a member, or eligible to be a member, of the In- affected owner or the United States may— and approved by the Secretary pursuant to this dian tribe with jurisdiction over the trust or re- ‘‘(i) commence a civil action in the United section. stricted interests in the parcel being sold and is, States district court for the district in which the ‘‘(e) VALIDITY OF LEASES.—No lease of trust or as of the time of sale under this subparagraph, parcel of land is located; and restricted interests in a parcel of land that is the owner of the largest undivided interest in ‘‘(ii) request that the court issue an order for owner-managed under this section shall be valid the parcel shall have a right to purchase the ejectment or any other appropriate remedy nec- or enforceable against the owners of such inter- parcel by tendering to the Secretary an amount essary for the partition of the land by sale. ests, or against the land, the interest or the equal to the highest sufficient bid submitted at ‘‘(B) FEDERAL ROLE.—With respect to any United States, unless such lease— the sale, less that amount of the bid attributable civil action brought under subparagraph (A)— ‘‘(1) is consistent with, and entered into in ac- to such owner’s share, but only if— ‘‘(i) the United States— cordance with, the requirements of this section; ‘‘(I) the owner submitted a sufficient bid at ‘‘(I) shall receive notice of the civil action; or the sale; and ‘‘(2) has been approved by the Secretary in ac- ‘‘(II) the owner’s total undivided interest in ‘‘(II) may be a party to the civil action; and cordance with other Federal laws applicable to the parcel immediately prior to the sale was— ‘‘(ii) the civil action shall not be dismissed, the leasing of trust or restricted land. ‘‘(aa) greater than the undivided interest held and no relief requested shall be denied, on the ‘‘(f) LEASE REVENUES.—The Secretary shall by any other co-owners, except where there are ground that the civil action is against the not be responsible for the collection of, or ac- 2 or more co-owners whose interests are of equal United States or that the United States is a nec- counting for, any lease revenues accruing to size but larger than the interests of all other co- essary and indispensable party. any interests under a lease authorized by sub- owners and such owners of the largest interests ‘‘(4) GRANTS AND LOANS.—The Secretary may section (e), so long as such interest is in owner- have agreed in writing that 1 of them may exer- provide grants and low interest loans to success- managed status under the provisions of this sec- cise the right of purchase under this clause; and ful bidders at sales authorized by this sub- tion. ‘‘(bb) equal to or greater than 20 percent of section, provided that— ‘‘(g) JURISDICTION.— the entire undivided ownership of the parcel; ‘‘(A) the total amount of such assistance in ‘‘(1) JURISDICTION UNAFFECTED BY STATUS.— ‘‘(III) within 3 days following the date of the any such sale shall not exceed 20 percent of the The Indian tribe with jurisdiction over an inter- auction or for receiving sealed bids, and in ac- appraised value of the parcel of land sold; and est in trust or restricted land that becomes

VerDate May 21 2004 02:18 Jun 03, 2004 Jkt 029060 PO 00000 Frm 00082 Fmt 4624 Sfmt 6333 E:\CR\FM\A02JN6.077 S02PT1 June 2, 2004 CONGRESSIONAL RECORD — SENATE S6381 owner-managed pursuant to this section shall SEC. 6. ADDITIONAL AMENDMENTS. passing to such heir represents less than 5 per- continue to have jurisdiction over the interest to (a) IN GENERAL.—The Indian Land Consolida- cent of the entire undivided ownership of the the same extent and in all respects that such tion Act (25 U.S.C. 2201 et seq.) is amended— parcel of land as evidenced by the Secretary’s tribe had prior to the interest acquiring owner- (1) in the second sentence of section 205(a) (25 records as of the time the determination is made. managed status. U.S.C. 2204(a)), by striking ‘‘over 50 per centum ‘‘(B) EXCEPTION.—Notwithstanding subpara- ‘‘(2) PERSONS USING LAND.—Any person hold- of the undivided interests’’ and inserting ‘‘undi- graph (A), the consent of such heir shall be re- ing, leasing, or otherwise using such interest in vided interests equal to at least 50 percent of the quired for the sale at probate of the heir’s inter- land shall be considered to consent to the juris- undivided interest’’; est if, at the time of the decedent’s death, the diction of the Indian tribe referred to in para- (2) in section 207 (25 U.S.C. 2206), by adding heir was residing on the parcel of land of which graph (1), including such tribe’s laws and regu- a subsection at the end as follows: the interest to be sold was a part. lations, if any, relating to the use, and any ef- ‘‘(p) PURCHASE OPTION AT PROBATE.— ‘‘(6) DISTRIBUTION OF PROCEEDS.—Proceeds fects associated with the use, of the interest. ‘‘(1) IN GENERAL.—The trust or restricted in- from the sale of interests under this subsection ‘‘(h) CONTINUATION OF OWNER-MANAGED STA- terests in a parcel of land in the decedent’s es- shall be distributed to the heirs, devisees, or spouse whose interest was sold in accordance TUS; REVOCATION.— tate may be purchased at probate in accordance with the values of their respective interests. The ‘‘(1) IN GENERAL.—Subject to the provisions of with the provisions of this subsection. paragraph (2), after the applications of the ‘‘(2) SALE OF INTEREST AT FAIR MARKET proceeds attributable to an heir or devisee shall be held in an account as trust personalty if the owners of all of the trust or restricted interests VALUE.—Subject to paragraph (3), the Secretary interest sold would have otherwise passed to the in a parcel of land have been approved by the is authorized to sell trust or restricted interests heir or devisee in trust or restricted status.’’; Secretary pursuant to subsection (d), each such in land subject to this subsection, including the interest that a surviving spouse would otherwise (3) in section 206 (25 U.S.C. 2205)— interest shall continue in owner-managed status (A) in subsection (a), by striking paragraph under this section notwithstanding any subse- receive under section 207(a)(2) (A) or (D), at no less than fair market value, as determined in ac- (3) and inserting the following: quent conveyance of the interest in trust or re- ‘‘(3) TRIBAL PROBATE CODES.—Except as pro- cordance with the provisions of this Act, to any stricted status to another person or the subse- vided in any applicable Federal law, the Sec- of the following eligible purchasers: quent descent of the interest in trust or re- retary shall not approve a tribal probate code, ‘‘(A) Any other eligible heir taking an interest stricted status by testate or intestate succession or an amendment to such a code, that prohibits in the same parcel of land by intestate succes- to 1 or more heirs. the devise of an interest in trust or restricted sion or the decedent’s other devisees of interests ‘‘(2) REVOCATION.—Owner-managed status of land to— an interest may be revoked upon written request in the same parcel who are eligible to receive a ‘‘(A) an Indian lineal descendant of the origi- of the owners (including the parents or legal devise under section 207(b)(1)(A). nal allottee; or guardians of minors or incompetent owners) of ‘‘(B) All persons who own undivided trust or ‘‘(B) an Indian who is not a member of the In- all trust or restricted interests in the parcel, sub- restricted interests in the same parcel of land in- dian tribe with jurisdiction over such an inter- mitted to the Secretary in accordance with regu- volved in the probate proceeding. est; lations adopted under subsection (l). The rev- ‘‘(C) The Indian tribe with jurisdiction over unless the code provides for— ocation shall become effective as of the date on the interest, or the Secretary on behalf of such ‘‘(i) the renouncing of interests to eligible which the last of all such requests has been de- Indian tribe. devisees in accordance with the code; ‘‘(3) REQUEST TO PURCHASE; AUCTION; CONSENT livered to the Secretary. ‘‘(ii) the opportunity for a devisee who is the REQUIREMENTS.—No sale of an interest in pro- spouse or lineal descendant of a testator to re- ‘‘(3) EFFECT OF REVOCATION.—Revocation of bate shall occur under this subsection unless— serve a life estate without regard to waste; and owner-managed status under paragraph (2) ‘‘(A) an eligible purchaser described in para- ‘‘(iii) payment of fair market value in the shall not affect the validity of any lease made in graph (2) submits a written request to purchase manner prescribed under subsection (c)(2).’’; accordance with the provisions of this section prior to the distribution of the interest to heirs and prior to the effective date of the revocation, pro- or devisees of the decedent and in accordance (B) in subsection (c)— vided that, after such revocation becomes effec- with any regulations of the Secretary; and (i) in paragraph (1)— tive, the Secretary shall be responsible for the ‘‘(B) except as provided in paragraph (5), the (I) by striking the paragraph heading and in- collection of, and accounting for, all future heirs or devisees of such interest, and the dece- serting the following: UTHORITY.— lease revenues accruing to the trust or restricted dent’s surviving spouse, if any, receiving a life ‘‘(1) A interests in the parcel from and after such effec- ‘‘(A) IN GENERAL.—’’; estate under section 207(a)(2) (A) or (D) consent (II) in the first sentence of subparagraph (A) tive date. to the sale. ‘‘(i) DEFINED TERMS.— (as redesignated by clause (i)), by striking ‘‘sec- If the Secretary receives more than 1 request to tion 207(a)(6)(A) of this title’’ and inserting ‘‘(1) For purposes of subsection (d)(1), the purchase the same interest, the Secretary shall term ‘qualified applicant’ means— ‘‘section 207(b)(2)(A)(ii) of this title’’; and sell the interest by public auction or sealed bid (III) by striking the last sentence and insert- ‘‘(A) a person over the age of 18 who owns a (as determined by the Secretary) at not less than trust or restricted interest in a parcel of land; ing the following: the appraised fair market value to the eligible ‘‘(B) TRANSFER.—The Secretary shall transfer and purchaser submitting the highest bid. payments received under subparagraph (A) to ‘‘(B) the parent or legal guardian of a minor ‘‘(4) APPRAISAL AND NOTICE.—Prior to the sale any person or persons who would have received or incompetent person who owns a trust or re- of an interest pursuant to this subsection, the an interest in land if the interest had not been stricted interest in a parcel of land. Secretary shall— acquired by the Indian tribe in accordance with ‘‘(2) For purposes of this section, the term ‘‘(A) appraise the interest at its fair market this paragraph.’’; and ‘owner-managed status’ means, with respect to value in accordance with this Act; (ii) in paragraph (2)— a trust or restricted interest, that— ‘‘(B) provide eligible heirs, other devisees, and (I) in subparagraph (A)— ‘‘(A) the interest is a trust or restricted inter- the Indian tribe with jurisdiction over the inter- (aa) by striking the subparagraph heading est in a parcel of land for which applications est with written notice, sent by first class mail, and all that follows through ‘‘Paragraph (1) covering all trust or restricted interests in such that the interest is available for purchase in ac- shall not apply’’ and inserting the following: parcel have been submitted to and approved by cordance with this subsection; and ‘‘(A) INAPPLICABILITY TO CERTAIN INTER- the Secretary pursuant to subsection (d); ‘‘(C) if the Secretary receives more than 1 re- ESTS.— ‘‘(B) the interest may be leased without ap- quest to purchase the interest by a person de- ‘‘(i) IN GENERAL.—Paragraph (1) shall not proval of the Secretary pursuant to, and in a scribed in subparagraph (B), provide notice of apply’’; (bb) in clause (i) (as redesignated by item manner that is consistent with, the requirements the manner (auction or sealed bid), time and (aa)), by striking ‘‘if, while’’ and inserting the of this section; and place of the sale, a description, and the ap- following: ‘‘if— ‘‘(C) no revocation has occurred under sub- praised fair market value, of the interest to be section (h)(2). ‘‘(I) while’’; sold— (cc) by striking the period at the end and in- ‘‘(j) SECRETARIAL APPROVAL OF OTHER TRANS- ‘‘(i) to the heirs or other devisees and the In- serting ‘‘; or’’; and ACTIONS.—Except with respect to the specific dian tribe with jurisdiction over the interest, by (dd) by adding at the end the following: lease transaction described in paragraph (1) of first class mail; and ‘‘(II)(aa) the interest is part of a family farm subsection (c), interests that acquire owner- ‘‘(ii) to all other eligible purchasers, by post- that is devised to a member of the family of the managed status under the provisions of this sec- ing written notice in at least 5 conspicuous decedent; and tion shall continue to be subject to all Federal places in the vicinity of the place of hearing. ‘‘(bb) the devisee agrees that the Indian tribe laws requiring the Secretary to approve trans- ‘‘(5) SMALL UNDIVIDED INTERESTS IN INDIAN with jurisdiction over the land will have the op- actions involving trust or restricted land (in- LANDS.— portunity to acquire the interest for fair market cluding leases with terms of a duration in excess ‘‘(A) IN GENERAL.—Subject to subparagraph value if the interest is offered for sale to a per- of 10 years) that would otherwise apply to such (B), the consent of a person who is an heir oth- son or entity that is not a member of the family interests if the interests had not acquired erwise required under paragraph (3)(B) shall of the owner of the land. owner-managed status under this section. not be required for the auction and sale of an ‘‘(ii) RECORDING OF INTEREST.—On request by ‘‘(k) EFFECT OF SECTION.—Subject to sub- interest at probate under this subsection if— the Indian tribe described in clause (i)(II)(bb), a sections (c), (f), and (h), nothing in this section ‘‘(i) the interest is passing by intestate succes- restriction relating to the acquisition by the In- diminishes or otherwise affects any authority or sion; and dian tribe of an interest in a family farm in- responsibility of the Secretary with respect to an ‘‘(ii) prior to the auction the Secretary deter- volved shall be recorded as part of the deed re- interest in trust or restricted land.’’. mines in the probate proceeding that the interest lating to the interest involved.

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‘‘(iii) MORTGAGE AND FORECLOSURE.—Nothing (E) by adding at the end of the section: (III) in subparagraph (B), by striking the pe- in clause (i)(II) limits— ‘‘(d) AUTHORIZATION OF APPROPRIATIONS.— riod at the end and inserting ‘‘; and’’; and ‘‘(I) the ability of an owner of land to which There is authorized to be appropriated to carry (IV) by adding at the end the following: that clause applies to mortgage the land; or out this section $75,000,000 for fiscal year 2005, ‘‘(C) be used to acquire undivided interests on ‘‘(II) the right of the entity holding such a $95,000,000 for fiscal year 2006, and $145,000,000 the reservation from which the income was de- mortgage to foreclose or otherwise enforce such for each of fiscal years 2007 through 2010.’’; rived.’’; and a mortgage agreement in accordance with appli- (6) in section 214 (25 U.S.C. 2213), by striking (ii) by striking paragraph (2) and inserting cable law. subsection (b) and inserting the following: the following: ‘‘(iv) DEFINITION OF ‘MEMBER OF THE FAM- ‘‘(b) APPLICATION OF REVENUE FROM AC- ‘‘(2) USE OF FUNDS.—The Secretary may use ILY’.—In this paragraph, the term ‘member of QUIRED INTERESTS TO LAND CONSOLIDATION the revenue deposited in the Acquisition Fund the family’, with respect to a decedent or land- PROGRAM.— under paragraph (1) to acquire some or all of owner, means— ‘‘(1) IN GENERAL.—The Secretary shall have a the undivided interests in any parcels of land in ‘‘(I) a lineal descendant of a decedent or land- lien on any revenue accruing to an interest de- accordance with section 205.’’; owner; scribed in subsection (a) until the Secretary pro- (9) in section 217 (25 U.S.C. 2216)— ‘‘(II) a lineal descendant of the grandparent vides for the removal of the lien under para- (A) in subsection (b)(1), by striking subpara- of a decedent or landowner; graph (3), (4), or (5). graph (B) and inserting a new subparagraph ‘‘(III) the spouse of a descendant or land- ‘‘(2) REQUIREMENTS.— (B) as follows: owner described in subclause (I) or (II); and ‘‘(A) IN GENERAL.—Until the Secretary re- ‘‘(B) WAIVER OF REQUIREMENT.—The require- ‘‘(IV) the spouse of a decedent or land- moves a lien from an interest in land under ment for an estimate of value under subpara- owner.’’; and paragraph (1)— graph (A) may be waived in writing by an (II) in subparagraph (B), by striking ‘‘sub- ‘‘(i) any lease, resource sale contract, right-of- owner of a trust or restricted interest in land ei- paragraph (A)’’ and all that follows through way, or other document evidencing a trans- ther selling, exchanging, or conveying by gift ‘‘207(a)(6)(B) of this title’’ and inserting ‘‘para- action affecting the interest shall contain a deed for no or nominal consideration such inter- graph (1)’’; clause providing that all revenue derived from est— (4) in section 207 (25 U.S.C. 2206), by striking the interest shall be paid to the Secretary; and ‘‘(i) to an Indian person who is the owner’s subsection (g); ‘‘(ii) any revenue derived from any interest spouse, brother, sister, lineal ancestor, lineal de- (5) in section 213 (25 U.S.C. 2212)— acquired by the Secretary in accordance with scendant, or collateral heir; or (A) by striking the section heading and insert- section 213 shall be deposited in the fund cre- ‘‘(ii) to an Indian co-owner or to the tribe ing the following: ated under section 216. with jurisdiction over the subject parcel of land, ‘‘SEC. 2212. FRACTIONAL INTEREST ACQUISITION ‘‘(B) APPROVAL OF TRANSACTIONS.—Notwith- where the grantor owns a fractional interest PROGRAM.’’; standing section 16 of the Act of June 18, 1934 that represents 5 percent or less of the parcel.’’; (B) in subsection (a), by— (commonly known as the ‘Indian Reorganiza- (B) in subsection (e), by striking the matter (i) adding in paragraph (1) ‘‘or from an heir tion Act’) (25 U.S.C. 476), or any other provision preceding paragraph (1), and inserting ‘‘Not- during probate in accordance with section of law, until the Secretary removes a lien from withstanding any other provision of law, the 207(p) (25 U.S.C. 2206(p))’’ after ‘‘owner,’’; and an interest in land under paragraph (1), the names and mailing addresses of the owners of (ii) striking ‘‘(2) AUTHORITY OF SECRETARY.— Secretary may approve a transaction covered any interest in trust or restricted lands, and in- ’’ and all that follows through ‘‘the Secretary under this section on behalf of an Indian tribe. formation on the location of the parcel and the shall submit’’ and inserting the following: ‘‘(3) REMOVAL OF LIENS AFTER FINDINGS.—The percentage of undivided interest owned by each ‘‘(2) AUTHORITY OF SECRETARY.—The Sec- Secretary may remove a lien referred to in para- individual shall, upon written request, be made retary shall submit’’; and graph (1) if the Secretary makes a finding (iii) by striking ‘‘whether the program to ac- available to’’; that— (C) in subsection (e)(1), by striking ‘‘Indian’’; quire fractional interests should be extended or ‘‘(A) the costs of administering the interest (D) in subsection (e)(3), by striking ‘‘prospec- altered to make resources’’ and inserting ‘‘how from which revenue accrues under the lien will tive applicants for the leasing, use, or consolida- the fractional interest acquisition program equal or exceed the projected revenues for the tion of’’ and inserting ‘‘any person that is leas- should be enhanced to increase the resources parcel of land involved; ing, using, or consolidating, or is applying to made’’; ‘‘(B) in the discretion of the Secretary, it will lease, use, or consolidate,’’; and (C) in subsection (b), by striking paragraph take an unreasonable period of time for the par- (E) by striking subsection (f) and inserting the (4) and inserting the following: ‘‘(4) shall minimize the administrative costs cel of land to generate revenue that equals the following: ‘‘(f) PURCHASE OF LAND BY INDIAN TRIBE.— associated with the land acquisition program purchase price paid for the interest; or ‘‘(C) a subsequent decrease in the value of ‘‘(1) IN GENERAL.—Except as provided in para- through the use of policies and procedures de- land or commodities associated with the parcel graph (2), before the Secretary approves an ap- signed to accommodate the voluntary sale of in- of land make it likely that the interest will be plication to terminate the trust status or remove terests under this section, notwithstanding the unable to generate revenue that equals the pur- the restrictions on alienation from a parcel of, existence of any otherwise applicable policy, chase price paid for the interest in a reasonable or interest in, trust or restricted land, the In- procedure, or regulation, through the elimi- time. dian tribe with jurisdiction over the parcel shall nation of duplicate— have the opportunity— ‘‘(A) conveyance documents; ‘‘(4) REMOVAL OF LIENS UPON PAYMENT INTO ‘‘(B) administrative proceedings; and THE ACQUISITION FUND.—The Secretary shall re- ‘‘(A) to match any offer contained in the ap- ‘‘(C) transactions.’’; move a lien referred to in paragraph (1) upon plication; or (D) in subsection (c)— payment of an amount equal to the purchase ‘‘(B) in a case in which there is no purchase (i) in paragraph (1)— price of that interest in land into the Acquisi- price offered, to acquire the interest in the par- (I) in subparagraph (A), by striking ‘‘at least tion Fund created under section 2215 of this cel by paying the fair market value of the inter- 5 percent of the’’ and inserting in its place title, except where the tribe with jurisdiction est. ‘‘an’’; over such interest in land authorizes the Sec- ‘‘(2) EXCEPTION FOR FAMILY FARMS.— (II) in subparagraph (A), by inserting ‘‘in retary to continue the lien in order to generate ‘‘(A) IN GENERAL.—Paragraph (1) shall not such parcel’’ following ‘‘the Secretary shall con- additional acquisition funds. apply to a parcel of, or interest in, trust or re- vey an interest’’; ‘‘(5) OTHER REMOVAL OF LIENS.—The Sec- stricted land that is part of a family farm that (III) in subparagraph (A), by striking ‘‘land- retary may, in consultation with tribal govern- is conveyed to a member of the family of a land- owner upon payment’’ and all that follows and ments and other entities described in section owner (as defined in section 206(c)(2)(A)(iv)) if inserting the following: ‘‘landowner— 213(b)(3), periodically remove liens referred to in the conveyance requires that in the event that ‘‘(i) on payment by the Indian landowner of paragraph (1) from interests in land acquired by the parcel or interest is offered for sale to an en- the amount paid for the interest by the Sec- the Secretary.’’; tity or person that is not a member of the family retary; or (7) in section 215 (25 U.S.C. 2214), in the last of the landowner, the Indian tribe with jurisdic- ‘‘(ii) if— sentence, by striking ‘‘section 2212 of this title’’ tion over the land shall be afforded the oppor- ‘‘(I) the Indian referred to in this subpara- and inserting ‘‘this Act’’; tunity to purchase the interest pursuant to graph provides assurances that the purchase (8) in section 216 (25 U.S.C. 2215)— paragraph (1). price will be paid by pledging revenue from any (A) in subsection (a), by striking paragraph ‘‘(B) APPLICABILITY OF OTHER PROVISION.— source, including trust resources; and (2) and inserting the following: Section 206(c)(2)(A) shall apply with respect to ‘‘(II) the Secretary determines that the pur- ‘‘(2) collect all revenues received from the the recording and mortgaging of any trust or re- chase price will be paid in a timely and efficient lease, permit, or sale of resources from interests stricted land referred to in subparagraph (A).’’; manner.’’; and acquired under section 213 or paid by Indian (10) in section 219(b)(1)(A) (25 U.S.C. (IV) in subparagraph (B), by inserting before landowners under section 213.’’; and 2218(b)(1)(A)), by striking ‘‘100’’ and inserting the period at the end the following: ‘‘unless the (B) in subsection (b)— ‘‘90’’; and interest is subject to a foreclosure of a mortgage (i) in paragraph (1)— (11) in section 219, by adding at the end of the in accordance with the Act of March 29, 1956 (25 (I) in the matter preceding subparagraph (A), section: U.S.C. 483a)’’; and by striking ‘‘Subject to paragraph (2), all’’ and ‘‘(g) OTHER LAWS.—Nothing in this Act shall (ii) in paragraph (3), by striking ‘‘10 percent inserting ‘‘All’’; be construed to supersede, repeal, or modify any or more of the undivided interests’’ and insert- (II) in subparagraph (A), by striking ‘‘and’’ at general or specific statute authorizing the grant ing ‘‘an undivided interest’’; and the end; or approval of any type of land use transaction

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involving fractional interests in trust or re- (d) TRANSFERS OF RESTRICTED INDIAN LAND.— provide to such landowner the following infor- stricted land.’’. Section 4 of the Act of June 18, 1934 (25 U.S.C. mation with respect to each tract of trust or re- (b) DEFINITIONS.—Section 202 of the Indian 464), is amended in the first proviso by— stricted land in which the landowner has an in- Land Consolidation Act (25 U.S.C. 2201) is (1) striking ‘‘, in accordance with’’ and all terest: amended— that follows through ‘‘or in which the subject ‘‘(1) The location of the tract of land involved. (1) by striking paragraph (2) and inserting the matter of the corporation is located,’’; ‘‘(2) The identity of each other co-owner of in- following: (2) striking ‘‘, except as provided by the In- terests in the parcel of land. ‘‘(2) ‘Indian’ means— dian Land Consolidation Act’’ and all that fol- ‘‘(3) The percentage of ownership of each ‘‘(A) any person who is a member of any In- lows through the colon; and owner of an interest in the tract. dian tribe, is eligible to become a member of any (3) inserting ‘‘in accordance with the Indian ‘‘(m) PILOT PROJECT FOR THE MANAGEMENT OF Indian tribe, or is an owner (as of the date of Land Consolidation Act (25 U.S.C. 2201 et seq.) TRUST ASSETS OF INDIAN FAMILIES AND REL- enactment of the American Indian Probate Re- (including a tribal probate code approved under ATIVES.— form Act of 2004) of a trust or restricted interest that Act or regulations promulgated under that ‘‘(1) DEVELOPMENT PILOT PROJECT.—The Sec- in land; Act):’’. retary shall consult with tribes, individual land- ‘‘(B) any person meeting the definition of In- (e) ESTATE PLANNING.— owner organizations, Indian advocacy organiza- dian under the Indian Reorganization Act (25 (1) CONDUCT OF ACTIVITIES.—Section 207(f)(1) tions, and other interested parties to— U.S.C. 479) and the regulations promulgated of the Indian Land Consolidation Act (25 U.S.C. ‘‘(A) develop a pilot project for the creation of thereunder; and 2206) is amended by striking paragraph (1) and legal entities such as private or family trusts, ‘‘(C) with respect to the inheritance and own- inserting the following: partnerships corporations, or other organiza- ership of trust or restricted land in the State of ‘‘(1) IN GENERAL.— tions to improve, facilitate, and assist in the ef- California pursuant to section 207, any person ‘‘(A) The activities conducted under this sub- ficient management of interests in trust or re- described in subparagraph (A) or (B) or any section shall be conducted in accordance with stricted lands or funds owned by Indian family person who owns a trust or restricted interest in any applicable— members and relatives; and a parcel of such land in that State.’’; ‘‘(i) tribal probate code; or ‘‘(B) develop proposed rules, regulations, and (2) by striking paragraph (4) and inserting the ‘‘(ii) tribal land consolidation plan. guidelines to implement the pilot project, includ- following: ‘‘(B) The Secretary shall provide estate plan- ing— ‘‘(4) ‘trust or restricted lands’ means lands, ning assistance in accordance with this sub- ‘‘(i) the criteria for establishing such legal en- title to which is held by the United States in section, to the extent amounts are appropriated tities; trust for an Indian tribe or individual, or which for such purpose.’’. ‘‘(ii) reporting and other requirements that is held by an Indian tribe or individual subject (2) REQUIREMENTS.—Section 207(f)(2) of the the Secretary determines to be appropriate for to a restriction by the United States against Indian Land Consolidation Act (25 U.S.C. administering such entities; and ‘‘(iii) provisions for suspending or revoking alienation; and ‘trust or restricted interest in 2206(f)(2)) is amended by striking ‘‘and’’ at the the authority of an entity to engage in activities land’ or ‘trust or restricted interest in a parcel end of subparagraph (A), redesignating sub- relating to the management of trust or restricted of land’ means an interest in land, title to which paragraph (B) as subparagraph (D), and adding assets under the pilot project in order to protect is held in trust by the United States for an In- the following: dian tribe or individual, or which is held by an ‘‘(B) dramatically increase the use of wills the interests of the beneficial owners of such as- Indian tribe or individual subject to a restriction and other methods of devise among Indian land- sets. ‘‘(2) PRIMARY PURPOSES; LIMITATION; AP- by the United States against alienation.’’; and owners; PROVAL OF TRANSACTIONS; PAYMENTS BY SEC- (3) by adding at the end the following: ‘‘(C) substantially reduce the quantity and RETARY.— ‘‘(6) ‘parcel of highly fractionated Indian complexity of Indian estates that pass intestate land’ means a parcel of land that the Secretary, ‘‘(A) PURPOSES.—The primary purpose of any through the probate process, while protecting entity organized under the pilot project shall be pursuant to authority under a provision of this the rights and interests of Indian landowners; Act, determines to have, as evidenced by the to improve, facilitate, and assist in the manage- and’’. ment of interests in trust or restricted land, held Secretary’s records at the time of the determina- (3) PROBATE CODE DEVELOPMENT AND LEGAL by 1 or more persons, in furtherance of the pur- tion— ASSISTANCE GRANTS.—Section 207(f)(3) of the In- poses of this Act. ‘‘(A) 50 or more but less than 100 co-owners of dian Land Consolidation Act (25 U.S.C. undivided trust or restricted interests, and no 1 ‘‘(B) LIMITATION.—The organization or activi- 2206(f)(3)) is amended by striking paragraph (3) ties of any entity under the pilot project shall of such co-owners holds a total undivided trust and inserting the following: or restricted interest in the parcel that is greater not be construed to impair, impede, replace, ab- ‘‘(3) PROBATE CODE DEVELOPMENT AND LEGAL than 10 percent of the entire undivided owner- rogate, or modify in any respect the trust duties ASSISTANCE GRANTS.—In carrying out this sec- or responsibilities of the Secretary, nor shall ship of the parcel; or tion, the Secretary may award grants to— ‘‘(B) 100 or more co-owners of undivided trust anything in this subsection or in any rules, reg- ‘‘(A) Indian tribes, for purposes of tribal pro- or restricted interests; ulations, or guidelines developed under this sub- bate code development and estate planning serv- ‘‘(7) ‘land’ means any real property, and in- section enable any private or family trustee of ices to tribal members; cludes within its meaning for purposes of this trust or restricted interests in land to exercise ‘‘(B) organizations that provide legal assist- Act improvements permanently affixed to real any powers over such interests greater than that ance services for Indian tribes, Indian organiza- property; held by the Secretary with respect to such inter- tions, and individual owners of interests in trust ‘‘(8) ‘person’ or ‘individual’ means a natural ests. or restricted lands that are qualified as non- person; ‘‘(C) SECRETARIAL APPROVAL OF TRANS- profit organizations under section 501(c)(3) of ‘‘(9) ‘eligible heirs’ means, for purposes of sec- ACTIONS.—Any transaction involving the lease, tion 207 (25 U.S.C. 2206), any of a decedent’s the Internal Revenue Code of 1986 and provide use, mortgage or other disposition of trust or re- children, grandchildren, great grandchildren, such services pursuant to Federal poverty guide- stricted land or other trust assets administered full siblings, half siblings by blood, and parents lines, for purposes of providing civil legal assist- by or through an entity under the pilot project who are— ance to such Indian tribes, individual owners, shall be subject to approval by the Secretary in ‘‘(A) Indian; or and Indian organizations for the development of accordance with applicable Federal law. ‘‘(B) lineal descendents within 2 degrees of tribal probate codes, for estate planning services ‘‘(D) PAYMENTS.—The Secretary shall have consanguinity of an Indian; or or for other purposes consistent with the serv- the authority to make payments of income and ‘‘(C) owners of a trust or restricted interest in ices they provide to Indians and Indian tribes; revenues derived from trust or restricted land or a parcel of land for purposes of inheriting by and other trust assets administered by or through an descent, renunciation, or consolidation agree- ‘‘(C) in specific areas and reservations where entity participating in the pilot project directly ment under section 207 (25 U.S.C. 2206), another qualified nonprofit organizations referred to in to the entity, in accordance with requirements trust or restricted interest in such parcel from subparagraph (B) do not provide such legal as- of the regulations adopted pursuant to this sub- the decedent; and sistance to Indian tribes, Indian organizations, section. ‘‘(10) ‘without regard to waste’ means, with or individual owners of trust or restricted land, ‘‘(3) LIMITATIONS ON PILOT PROJECT.— respect to a life estate interest in land, that the to other providers of such legal assistance; ‘‘(A) NUMBER OF ORGANIZATIONS.—The num- holder of such estate is entitled to the receipt of that submit an application to the Secretary, in ber of entities established under the pilot project all income, including bonuses and royalties, such form and manner as the Secretary may authorized by this subsection shall not exceed from such land to the exclusion of the prescribe. 30. remaindermen.’’. ‘‘(4) AUTHORIZATION FOR APPROPRIATIONS.— ‘‘(B) REGULATIONS REQUIRED.—No entity shall (c) ISSUANCE OF PATENTS.—Section 5 of the There is authorized to be appropriated such commence activities under the pilot project au- Act of February 8, 1887 (25 U.S.C. 348), is sums as may be necessary to carry out the provi- thorized by this subsection until the Secretary amended by striking the second proviso and in- sions of paragraph (3).’’. has adopted final rules and regulations under serting the following: ‘‘Provided, That the rules (4) NOTIFICATION TO LANDOWNERS.—Section paragraph (1)(B). of intestate succession under the Indian Land 207 of the Indian Land Consolidation Act (25 ‘‘(4) REPORT TO CONGRESS.—Prior to the expi- Consolidation Act (25 U.S.C. 2201 et seq.) (in- U.S.C. 2206) is amended by adding at the end ration of the pilot project provided for under cluding a tribal probate code approved under the following: this subsection, the Secretary shall submit a re- that Act or regulations promulgated under that ‘‘(l) NOTIFICATION TO LANDOWNERS.—After re- port to Congress stating— Act) shall apply to that land for which patents ceiving written request by any owner of a trust ‘‘(A) a description of the Secretary’s consulta- have been executed and delivered:’’. or restricted interest in land, the Secretary shall tion with Indian tribes, individual landowner

VerDate May 21 2004 02:18 Jun 03, 2004 Jkt 029060 PO 00000 Frm 00085 Fmt 4624 Sfmt 6333 E:\CR\FM\A02JN6.077 S02PT1 S6384 CONGRESSIONAL RECORD — SENATE June 2, 2004 associations, Indian advocacy organizations, (1) IN GENERAL.—Not later than 180 days after UNANIMOUS CONSENT AGREE- and other parties consulted with regarding the the date of enactment of this Act, the Secretary MENT—EXECUTIVE CALENDAR development of rules and regulations for the cre- shall notify Indian tribes and owners of trust or ation and management of interests in trust and restricted lands of the amendments made by this Mr. TALENT. Mr. President, as in ex- restricted lands under the pilot project; Act. ecutive session, I ask unanimous con- ‘‘(B) the feasibility of accurately monitoring (2) SPECIFICATIONS.—The notice required sent that immediately following the the performance of legal entities such as those under paragraph (1) shall be designed to inform vote in relation to the Cantwell amend- involved in the pilot project, and the effective- Indian owners of trust or restricted land of— ment, on Thursday, the Senate proceed ness of such entities as mechanisms to manage (A) the effect of this Act and the amendments to executive session and there be 10 and protect trust assets; made by this Act, with emphasis on the effect of minutes equally divided between the ‘‘(C) the impact that the use of entities such the provisions of this Act and the amendments as those in the pilot project may have with re- two leaders or their designees prior to made by this Act, on the testate disposition and three consecutive votes on the fol- spect to the accomplishment of the goals of the intestate descent of their interests in trust or re- Indian Land Consolidation Act (25 U.S.C. 2201 stricted land; lowing nominations: Calendar No. 559, et seq.); and (B) estate planning options available to the Sandra Townes, to be U.S. District ‘‘(D) any recommendations that the Secretary owners, including any opportunities for receiv- Judge for the Eastern District of New may have regarding whether to adopt a perma- ing estate planning assistance or advice; York; Calendar No. 560, Kenneth Karas, nent program as a management and consolida- to be U.S. District Judge for the South- tion measure for interests in trust or restricted (C) the use of negotiated sales, gift deeds, lands. land exchanges, and other transactions for con- ern District of New York; Calendar No. ‘‘(n) NOTICE TO HEIRS.—Prior to holding a solidating the ownership of land; and 561, Judith Herrera, to be U.S. District hearing to determine the heirs to trust or re- (D) a toll-free telephone number to be used for Judge for the District of New Mexico. I stricted property, or making a decision deter- obtaining information regarding the provisions further ask consent that following mining such heirs, the Secretary shall seek to of this Act and any trust assets of such owners. those votes, the President be imme- provide actual written notice of the proceedings (3) REQUIREMENTS.—The Secretary shall pro- diately notified of the Senate’s action, to all heirs. Such efforts shall include— vide the notice required under paragraph (1)— and the Senate then resume legislative ‘‘(1) a search of publicly available records and (A) by direct mail for those Indians with in- session. Federal records, including telephone and ad- terests in trust and restricted lands for which dress directories and including electronic search the Secretary has an address for the interest The PRESIDING OFFICER. Is there services or directories; holder; objection? ‘‘(2) an inquiry with family members and co- (B) through the Federal Register; Without objection, it is so ordered. heirs of the property; (C) through local newspapers in areas with ‘‘(3) an inquiry with the tribal government of f significant Indian populations, reservation which the owner is a member, and the tribal newspapers, and newspapers that are directed ORDERS FOR THURSDAY, JUNE 3, government with jurisdiction over the property, at an Indian audience; and 2004 if any; and ‘‘(4) if the property is of a value greater than (D) through any other means determined ap- Mr. TALENT. Mr. President, I ask $2,000, engaging the services of an independent propriate by the Secretary. unanimous consent that when the Sen- firm to conduct a missing persons search. (4) CERTIFICATION.—After providing notice ate completes its business today, it ad- ‘‘(o) MISSING HEIRS.— under this subsection, the Secretary shall— journ until 9:45 a.m. on Thursday, June ‘‘(1) For purposes of this subsection and sub- (A) certify that the requirements of this sub- 3. I further ask that following the pray- section (m), an heir may be presumed missing section have been met; and er and pledge, the morning hour be if— (B) publish notice of that certification in the ‘‘(A) such heir’s whereabouts remain un- Federal Register. deemed expired, the Journal of pro- known 60 days after completion of notice efforts (b) EFFECTIVE DATE.—Section 207 of the In- ceedings be approved to date, the time under subsection (m); and dian Land Consolidation Act (25 U.S.C. 2206), for the two leaders be reserved for their ‘‘(B) in the proceeding to determine a dece- except subsections (e) and (f) of that section, use later in the day, the Senate then dent’s heirs, the Secretary finds that the heir shall not apply to the estate of an individual begin a period of morning business for has had no contact with other heirs of the dece- who dies before the date that is 1 year after the up to 60 minutes, with the majority dent, if any, or with the Department relating to date on which the Secretary makes the certifi- leader or his designee in control of the trust or restricted land or other trust assets at cation required under subsection (a)(4). any time during the 6-year period preceding the first 30 minutes, and the Democratic hearing to determine heirs. SEC. 9. SEVERABILITY. leader or his designee in control of the ‘‘(2) Before the date for declaring an heir If any provision of this Act or of any amend- final 30 minutes; provided that fol- missing, any person may request an extension of ment made by this Act, or the application of any lowing morning business, the Senate time to locate such heir. The Secretary shall such provision to any person or circumstance, is resume consideration of Calendar No. grant a reasonable extension of time for good held to be invalid for any reason, the remainder 503, S. 2400, the Department of Defense cause. of this Act and of amendments made by this Act, ‘‘(3) An heir shall be declared missing only and the application of the provisions and of the authorization bill. after a review of the efforts made in the heirship amendments made by this Act to any other per- The PRESIDING OFFICER. Without proceeding and a finding has been made that son or circumstance shall not be affected by objection, it is so ordered. this subsection has been complied with. such holding, except that each of subclauses f ‘‘(4) An heir determined to be missing pursu- (II), (III), and (IV) of section 205(d)(2)(I)(i) is ant to this subsection shall be deemed to have deemed to be inseverable from the other 2, such PROGRAM predeceased the decedent for purposes of descent that if any 1 of those 3 subclauses is held to be Mr. TALENT. Tomorrow, following and devise of trust or restricted land and trust invalid for any reason, neither of the other 2 of personalty within that decedent’s estate.’’. such subclauses shall be given effect. morning business, the Senate will re- sume consideration of the Department SEC. 7. ANNUAL NOTICE AND FILING REQUIRE- SEC. 10. REGULATIONS. MENT FOR OWNERS OF INTERESTS of Defense authorization bill. Under The Secretary is authorized to adopt such reg- IN TRUST OR RESTRICTED LANDS. the previous order, when the Senate re- The Indian Land Consolidation Act (25 U.S.C. ulations as may be necessary to implement the provisions of this Act. sumes consideration of the bill, the 2201 et seq.) is amended by adding at the end pending Crapo and Graham amend- the following: Mr. TALENT. Mr. President, I ask ments will be adopted, and Senator ‘‘SEC. 222. ANNUAL NOTICE AND FILING; CUR- unanimous consent that the committee CANTWELL will be recognized to offer RENT WHEREABOUTS OF INTEREST amendment be agreed to, the bill, as OWNERS. an amendment. There will be up to 4 ‘‘On at least an annual basis, the Secretary amended, be read a third time and hours of debate on her amendment shall include along with other regular reports to passed, the motions to reconsider be prior to a vote. It is anticipated that owners of trust or restricted interests in land laid upon the table en bloc, and that the vote in relation to the Cantwell and individual Indian money account owners a any statements relating to the bill be amendment will occur at approxi- change of name and address form by means of printed in the RECORD. mately 2:30 p.m. Immediately following which the owner may confirm or update the The PRESIDING OFFICER. Without the vote in relation to the Cantwell owner’s name and address. The change of name objection, it is so ordered. and address form shall include a section in amendment, the Senate will vote on which the owner may confirm and update the The committee amendment in the three judicial nominations. Therefore, owner’s name and address.’’. nature of a substitute was agreed to. for the information of Senators, there SEC. 8. NOTICE; EFFECTIVE DATE. The bill (S. 1721), as amended, was will be up to four stacked votes begin- (a) NOTICE.— read the third time and passed. ning in the early afternoon.

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