Home > 106th Congressional Bills > S. 1586 (es) To reduce the fractionated ownership of Indian lands, and for other purposes. [Engrossed in Senate] ...

S. 1586 (es) To reduce the fractionated ownership of Indian lands, and for other purposes. [Engrossed in Senate] ...


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        S.1586

                       One Hundred Sixth Congress

                                 of the

                        United States of America


                          AT THE SECOND SESSION

           Begun and held at the City of Washington on Monday,
             the twenty-fourth day of January, two thousand


                                 An Act


 
  To reduce the fractionated ownership of Indian lands, and for other 
                                purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Indian Land Consolidation Act 
Amendments of 2000''.

                   TITLE I--INDIAN LAND CONSOLIDATION

SEC. 101. FINDINGS.

    Congress finds that--
        (1) in the 1800's and early 1900's, the United States sought to 
    assimilate Indian people into the surrounding non-Indian culture by 
    allotting tribal lands to individual members of Indian tribes;
        (2) as a result of the allotment Acts and related Federal 
    policies, over 90,000,000 acres of land have passed from tribal 
    ownership;
        (3) many trust allotments were taken out of trust status, often 
    without their owner's consent;
        (4) without restrictions on alienation, allotment owners were 
    subject to exploitation and their allotments were often sold or 
    disposed of without any tangible or enduring benefit to their 
    owners;
        (5) the trust periods for trust allotments have been extended 
    indefinitely;
        (6) because of the inheritance provisions in the original 
    treaties or allotment Acts, the ownership of many of the trust 
    allotments that have remained in trust status has become 
    fractionated into hundreds or thousands of undivided interests, 
    many of which represent 2 percent or less of the total interests;
        (7) Congress has authorized the acquisition of lands in trust 
    for individual Indians, and many of those lands have also become 
    fractionated by subsequent inheritance;
        (8) the acquisitions referred to in paragraph (7) continue to 
    be made;
        (9) the fractional interests described in this section often 
    provide little or no return to the beneficial owners of those 
    interests and the administrative costs borne by the United States 
    for those interests are inordinately high;
        (10) in Babbitt v. Youpee (117 S Ct. 727 (1997)), the United 
    States Supreme Court found the application of section 207 of the 
    Indian Land Consolidation Act (25 U.S.C. 2206) to the facts 
    presented in that case to be unconstitutional, forcing the 
    Department of the Interior to address the status of thousands of 
    undivided interests in trust and restricted lands;
        (11)(A) on February 19, 1999, the Secretary of the Interior 
    issued a Secretarial Order which officially reopened the probate of 
    all estates where an interest in land was ordered to escheat to an 
    Indian tribe pursuant to section 207 of the Indian Land 
    Consolidation Act (25 U.S.C. 2206); and
        (B) the Secretarial Order also directed appropriate officials 
    of the Bureau of Indian Affairs to distribute such interests ``to 
    the rightful heirs and beneficiaries without regard to 25 U.S.C. 
    2206'';
        (12) in the absence of comprehensive remedial legislation, the 
    number of the fractional interests will continue to grow 
    exponentially;
        (13) the problem of the fractionation of Indian lands described 
    in this section is the result of a policy of the Federal 
    Government, cannot be solved by Indian tribes, and requires a 
    solution under Federal law.
        (14) any devise or inheritance of an interest in trust or 
    restricted Indian lands is a matter of Federal law; and
        (15) consistent with the Federal policy of tribal self-
    determination, the Federal Government should encourage the 
    recognized tribal government that exercises jurisdiction over a 
    reservation to establish a tribal probate code for that 
    reservation.

SEC. 102. DECLARATION OF POLICY.

    It is the policy of the United States--
        (1) to prevent the further fractionation of trust allotments 
    made to Indians;
        (2) to consolidate fractional interests and ownership of those 
    interests into usable parcels;
        (3) to consolidate fractional interests in a manner that 
    enhances tribal sovereignty;
        (4) to promote tribal self-sufficiency and self-determination; 
    and
        (5) to reverse the effects of the allotment policy on Indian 
    tribes.
    SEC. 103. AMENDMENTS TO THE INDIAN LAND CONSOLIDATION ACT.
    The Indian Land Consolidation Act (25 U.S.C. 2201 et seq.) is 
amended--
        (1) in section 202--
            (A) in paragraph (1), by striking ``(1) `tribe''' and 
        inserting ``(1) `Indian tribe' or `tribe''';
            (B) by striking paragraph (2) and inserting the following:
        ``(2) `Indian' means any person who is a member of any Indian 
    tribe or is eligible to become a member of any Indian tribe, or any 
    person who has been found to meet the definition of `Indian' under 
    a provision of Federal law if the Secretary determines that using 
    such law's definition of Indian is consistent with the purposes of 
    this Act;'';
            (C) by striking ``and'' at the end of paragraph (3);
            (D) by striking the period at the end of paragraph (4) and 
        inserting ``; and''; and
            (E) by adding at the end the following:
        ``(5) `heirs of the first or second degree' means parents, 
    children, grandchildren, grandparents, brothers and sisters of a 
    decedent.'';
        (2) in section 205--
            (A) in the matter preceding paragraph (1)--
                (i) by striking ``Any Indian'' and inserting ``(a) In 
            General.--Subject to subsection (b), any Indian'';
                (ii) by striking the colon and inserting the following: 
            ``. Interests owned by an Indian tribe in a tract may be 
            included in the computation of the percentage of ownership 
            of the undivided interests in that tract for purposes of 
            determining whether the consent requirement under the 
            preceding sentence has been met.'';
                (iii) by striking ``: Provided, That--'' and inserting 
            the following:
    ``(b) Conditions Applicable to Purchase.--Subsection (a) applies on 
the condition that--'';
            (B) in paragraph (2)--
                (i) by striking ``If,'' and inserting ``if''; and
                (ii) by adding ``and'' at the end; and
            (C) by striking paragraph (3) and inserting the following:
        ``(3) the approval of the Secretary shall be required for a 
    land sale initiated under this section, except that such approval 
    shall not be required with respect to a land sale transaction 
    initiated by an Indian tribe that has in effect a land 
    consolidation plan that has been approved by the Secretary under 
    section 204.'';
        (3) by striking section 206 and inserting the following:
``SEC. 206. TRIBAL PROBATE CODES; ACQUISITIONS OF FRACTIONAL INTERESTS 
BY TRIBES.
    ``(a) Tribal Probate Codes.--
        ``(1) In general.--Notwithstanding any other provision of law, 
    any Indian tribe may adopt a tribal probate code to govern descent 
    and distribution of trust or restricted lands that are--
            ``(A) located within that Indian tribe's reservation; or
            ``(B) otherwise subject to the jurisdiction of that Indian 
        tribe.
        ``(2) Possible inclusions.--A tribal probate code referred to 
    in paragraph (1) may include--
            ``(A) rules of intestate succession; and
            ``(B) other tribal probate code provisions that are 
        consistent with Federal law and that promote the policies set 
        forth in section 102 of the Indian Land Consolidation Act 
        Amendments of 2000.
        ``(3) Limitations.--The Secretary shall not approve a tribal 
    probate code if such code prevents an Indian person from inheriting 
    an interest in an allotment that was originally allotted to his or 
    her lineal ancestor.
    ``(b) Secretarial Approval.--
        ``(1) In general.--Any tribal probate code enacted under 
    subsection (a), and any amendment to such a tribal probate code, 
    shall be subject to the approval of the Secretary.
        ``(2) Review and approval.--
            ``(A) In general.--Each Indian tribe that adopts a tribal 
        probate code under subsection (a) shall submit that code to the 
        Secretary for review. Not later than 180 days after a tribal 
        probate code is submitted to the Secretary under this 
        paragraph, the Secretary shall review and approve or disapprove 
        that tribal probate code.
            ``(B) Consequence of failures to approve or disapprove a 
        tribal probate code.--If the Secretary fails to approve or 
        disapprove a tribal probate code submitted for review under 
        subparagraph (A) by the date specified in that subparagraph, 
        the tribal probate code shall be deemed to have been approved 
        by the Secretary, but only to the extent that the tribal 
        probate code is consistent with Federal law and promotes the 
        policies set forth in section 102 of the Indian Land 
        Consolidation Act Amendments of 2000.
            ``(C) Consistency of tribal probate code with act.--The 
        Secretary may not approve a tribal probate code, or any 
        amendment to such a code, under this paragraph unless the 
        Secretary determines that the tribal probate code promotes the 
        policies set forth in section 102 of the Indian Land 
        Consolidation Act Amendments of 2000.
            ``(D) Explanation.--If the Secretary disapproves a tribal 
        probate code, or an amendment to such a code, under this 
        paragraph, the Secretary shall include in the notice of 
        disapproval to the Indian tribe a written explanation of the 
        reasons for the disapproval.
            ``(E) Amendments.--
                ``(i) In general.--Each Indian tribe that amends a 
            tribal probate code under this paragraph shall submit the 
            amendment to the Secretary for review and approval. Not 
            later than 60 days after receiving an amendment under this 
            subparagraph, the Secretary shall review and approve or 
            disapprove the amendment.
                ``(ii) Consequence of failure to approve or disapprove 
            an amendment.--If the Secretary fails to approve or 
            disapprove an amendment submitted under clause (i), the 
            amendment shall be deemed to have been approved by the 
            Secretary, but only to the extent that the amendment is 
            consistent with Federal law and promotes the policies set 
            forth in section 102 of the Indian Land Consolidation Act 
            of 2000.
        ``(3) Effective dates.--A tribal probate code approved under 
    paragraph (2) shall become effective on the later of--
            ``(A) the date specified in section 207(g)(5); or
            ``(B) 180 days after the date of approval.
        ``(4) Limitations.--
            ``(A) Tribal probate codes.--Each tribal probate code 
        enacted under subsection (a) shall apply only to the estate of 
        a decedent who dies on or after the effective date of the 
        tribal probate code.
            ``(B) Amendments to tribal probate codes.--With respect to 
        an amendment to a tribal probate code referred to in 
        subparagraph (A), that amendment shall apply only to the estate 
        of a decedent who dies on or after the effective date of the 
        amendment.
        ``(5) Repeals.--The repeal of a tribal probate code shall--
            ``(A) not become effective earlier than the date that is 
        180 days after the Secretary receives notice of the repeal; and
            ``(B) apply only to the estate of a decedent who dies on or 
        after the effective date of the repeal.
    ``(c) Authority Available to Indian Tribes.--
        ``(1) In general.--If the owner of an interest in trust or 
    restricted land devises an interest in such land to a non-Indian 
    under section 207(a)(6)(A), the Indian tribe that exercises 
    jurisdiction over the parcel of land involved may acquire such 
    interest by paying to the Secretary the fair market value of such 
    interest, as determined by the Secretary on the date of the 
    decedent's death. The Secretary shall transfer such payment to the 
    devisee.
        ``(2) Limitation.--
            ``(A) In general.--Paragraph (1) shall not apply to an 
        interest in trust or restricted land if, while the decedent's 
        estate is pending before the Secretary, the non-Indian devisee 
        renounces the interest in favor of an Indian person.
            ``(B) Reservation of life estate.--A non-Indian devisee 
        described in subparagraph (A) or a non-Indian devisee described 
        in section 207(a)(6)(B), may retain a life estate in the 
        interest involved, including a life estate to the revenue 
        produced from the interest. The amount of any payment required 
        under paragraph (1) shall be reduced to reflect the value of 
        any life estate reserved by a non-Indian devisee under this 
        subparagraph.
        ``(3) Payments.--With respect to payments by an Indian tribe 
    under paragraph (1), the Secretary shall--
            ``(A) upon the request of the tribe, allow a reasonable 
        period of time, not to exceed 2 years, for the tribe to make 
        payments of amounts due pursuant to paragraph (1); or
            ``(B) recognize alternative agreed upon exchanges of 
        consideration or extended payment terms between the non-Indian 
        devisee described in paragraph (1) and the tribe in 
        satisfaction of the payment under paragraph (1).
    ``(d) Use of Proposed Findings by Tribal Justice Systems.--
        ``(1) Tribal justice system defined.--In this subsection, the 
    term `tribal justice system' has the meaning given that term in 
    section 3 of the Indian Tribal Justice Act (25 U.S.C. 3602).
        ``(2) Regulations.--The Secretary by regulation may provide for 
    the use of findings of fact and conclusions of law, as rendered by 
    a tribal justice system, as proposed findings of fact and 
    conclusions of law in the adjudication of probate proceedings by 
    the Department of the Interior.'';
        (4) by striking section 207 and inserting the following:

``SEC. 207. DESCENT AND DISTRIBUTION.

    ``(a) Testamentary Disposition.--
        ``(1) In general.--Interests in trust or restricted land may be 
    devised only to--
            ``(A) the decedent's Indian spouse or any other Indian 
        person; or
            ``(B) the Indian tribe with jurisdiction over the land so 
        devised.
        ``(2) Life estate.--Any devise of an interest in trust or 
    restricted land to a non-Indian shall create a life estate with 
    respect to such interest.
        ``(3) Remainder.--
            ``(A) In general.--Except where the remainder from the life 
        estate referred to in paragraph (2) is devised to an Indian, 
        such remainder shall descend to the decedent's Indian spouse or 
        Indian heirs of the first or second degree pursuant to the 
        applicable law of intestate succession.
            ``(B) Descent of interests.--If a decedent described in 
        subparagraph (A) has no Indian heirs of the first or second 
        degree, the remainder interest described in such subparagraph 

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