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108th CONGRESS
1st Session
S. 550
To amend the Indian Land Consolidation Act to improve provisions
relating to probate of trust and restricted land, and for other
purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 6, 2003
Mr. Campbell (for himself, Mr. Inouye, and Mr. Thomas) introduced the
following bill; which was read twice and referred to the Committee on
Indian Affairs
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A BILL
To amend the Indian Land Consolidation Act to improve provisions
relating to probate of trust and restricted land, 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 ``American Indian Probate Reform Act
of 2003''.
SEC. 2. FINDINGS.
Congress finds that--
(1) the Act of February 8, 1887 (commonly known as the
``Indian General Allotment Act'') (25 U.S.C. 331 et seq.),
which authorized the allotment of Indian reservations, did not
permit Indian allotment owners to provide for the testamentary
disposition of the land that was allotted to them;
(2) that Act provided that allotments would descend
according to State law of intestate succession based on the
location of the allotment;
(3) the reliance of the Federal Government on the State law
of intestate succession with respect to the descent of
allotments has resulted in numerous problems affecting Indian
tribes, members of Indian tribes, and the Federal Government,
including--
(A) the increasingly fractionated ownership of
trust and restricted land as that land is inherited by
successive generations of owners as tenants in common;
(B) the application of different rules of intestate
succession to each interest of a decedent in or to
trust or restricted land if that land is located within
the boundaries of more than 1 State, which
application--
(i) makes probate planning unnecessarily
difficult; and
(ii) impedes efforts to provide probate
planning assistance or advice;
(C) the absence of a uniform general probate code
for trust and restricted land, which makes it difficult
for Indian tribes to work cooperatively to develop
tribal probate codes; and
(D) the failure of Federal law to address or
provide for many of the essential elements of general
probate law, either directly or by reference, which--
(i) is unfair to the owners of trust and
restricted land (and heirs and devisees of
owners); and
(ii) makes probate planning more difficult;
and
(4) a uniform Federal probate code would likely--
(A) reduce the number of fractionated interests in
trust or restricted land;
(B) facilitate efforts to provide probate planning
assistance and advice;
(C) facilitate intertribal efforts to produce
tribal probate codes in accordance with section 206 of
the Indian Land Consolidation Act (25 U.S.C. 2205); and
(D) provide essential elements of general probate
law that are not applicable on the date of enactment of
this Act to interests in trust or restricted land.
SEC. 3. INDIAN PROBATE REFORM.
(a) Testamentary Disposition.--Section 207 of the Indian Land
Consolidation Act (25 U.S.C. 2206) is amended by striking subsection
(a) and inserting the following:
``(a) Testamentary Disposition.--
``(1) General devise of an interest in trust or restricted
land.--
``(A) In general.--Subject to any applicable
Federal law relating to the devise or descent of trust
or restricted land, or a tribal probate code enacted in
accordance with section 206, the owner of an interest
in trust or restricted land may devise such an interest
to--
``(i) an Indian tribe with jurisdiction
over the land; or
``(ii) any Indian in trust or restricted
status (or as a passive trust interest as
provided for in section 207A).
``(B) Status.--The devise of an interest in trust
or restricted land to an Indian under subparagraph
(A)(ii) shall not alter the status of such an interest
as a trust or restricted interest unless the testator
provides that the interest is to be held as a passive
trust interest.
``(2) Devise of trust or restricted land in passive trust
or fee.--
``(A) In general.--Except as provided under any
applicable Federal law, any interest in trust or
restricted land that is not devised in accordance with
paragraph (1) may be devised only--
``(i) as a life estate to any non-Indian
person, with the remainder being devised only
in accordance with clause (ii), subparagraph
(C), or paragraph (1)(A);
``(ii) to the lineal descendant or heir of
the first or second degree of the testator or,
if the testator does not have an heir of the
first or second degree or a lineal descendant,
to any lineal descendant of an Indian
grandparent of the testator, as a passive trust
interest (referred to in this section as an
`eligible passive trust devisee'); or
``(iii) in fee in accordance with
subparagraph (C).
``(B) Presumed devise of passive trust interest.--
Any devise to an eligible passive trust devisee, or any
devise of a remainder interest from the devise of a
life estate under subparagraph (A)(ii), that does not
indicate whether the interest is devised as a passive
trust interest or a fee interest shall be considered to
devise a passive trust interest.
``(C) Devise of a fee interest.--Subject to
subparagraph (D), any interest in trust or restricted
land that is not devised in accordance with paragraph
(1), or devised to an eligible passive trust devisee in
accordance with subparagraph (A), may be devised to a
non-Indian in fee.
``(D) Limitation.--Any interest in trust or
restricted land that is subject to section 4 of the Act
of June 18, 1934 (25 U.S.C. 464), may be devised only
in accordance with--
``(i) that section;
``(ii) subparagraph (A); or
``(iii) paragraph (1).
``(3) Devise of a passive trust interest.--
``(A) In general.--The holder of an interest in
trust or restricted land that is held as a passive
trust interest may devise the interest as a passive
trust interest only to--
``(i)(I) any Indian; or
``(II) the Indian tribe that exercises
jurisdiction over the interest;
``(ii) the lineal descendants, or heirs of
the first or second degree, of the holder;
``(iii) any living descendant of the
decedent from whom the holder acquired the
interest by devise or descent; or
``(iv) any person that owns a preexisting
interest or a passive trust interest in the
same parcel of land, if the preexisting
interest is held in trust or restricted status
or in passive trust status.
``(B) Ineligible devisees and intestate
succession.--A passive trust interest that is devised
to a person that is not eligible under subparagraph (A)
or that is not disposed of by a valid will shall pass
in accordance with the applicable law of intestate
succession as provided for in subsection (b).''.
(b) Nontestamentary Disposition.--Section 207 of the Indian Land
Consolidation Act (25 U.S.C. 2206) is amended by striking subsection
(b) and inserting the following:
``(b) Nontestamentary Disposition.--
``(1) Rules of descent.--Subject to any applicable Federal
law relating to the devise or descent of trust or restricted
property, any interest in trust or restricted land that is not
disposed of by a valid will--
``(A) shall descend according to a tribal probate
code that is approved in accordance with section 206;
or
``(B) in the case of an interest in trust or
restricted land to which such a code does not apply,
shall descend in accordance with--
``(i) paragraphs (2) through (7);
``(ii) section 207A; and
``(iii) other applicable Federal law.
``(2) No applicable code.--An intestate interest to which a
code described in paragraph (1) does not apply--
``(A) shall include--
``(i) an interest acquired by a decedent
through devise or inheritance (referred to in
this subsection as a `devise or inheritance
interest'); or
``(ii) an interest acquired by a decedent
by any means other than devise or inheritance
(referred to in this subsection as an `acquired
interest'), if--
``(I) the decedent--
``(aa) acquired additional
undivided interest in the same
parcel in which the interest is
held, by a means other than
devise or inheritance; or
``(bb) acquired land
adjoining the parcel of land in
which the interest is held; or
``(II) the parcel of land in which
the interest is held includes the
residence of the spouse of the
decedent; and
``(B) shall descend as follows:
``(i) Surviving indian spouse.--
``(I) In general.--If a decedent is
survived by an Indian spouse, and the
estate of the decedent includes 1 or
more acquired interests, the spouse of
the decedent shall receive all of the
acquired interests.
``(II) Devise or inheritance
interests.--If a decedent is survived
by an Indian spouse, and the estate of
the decedent includes 1 or more devise
or inheritance interests--
``(aa) if the decedent is
not survived by an Indian heir
of the first or second degree,
the spouse of the decedent
shall receive all of the devise
or inheritance interests; and
``(bb) if the decedent is
survived by an Indian heir of
the first or second degree, the
devise or inheritance interest
of the decedent shall descend
in accordance with paragraph
(3)(A).
``(ii) Surviving non-indian spouse.--
``(I) In general.--If a decedent is
survived by a non-Indian spouse, and
the estate of the decedent includes 1
or more acquired interests--
``(aa) the spouse of the
decedent shall receive a life
estate in each acquired
interest; and
``(bb)(AA) if the decedent
is survived by an Indian heir
of the first or second degree,
the remainder interests shall
descend in accordance with
paragraph (3)(A); and
``(BB) if the decedent is
not survived by an Indian heir
of the first or second degree,
the remainder interest shall
descend in accordance with
paragraph (3)(C).
``(II) Devise or inheritance
interests.--If the estate of a decedent
described in subclause (I) includes 1
or more devise or inheritance
interests--
``(aa) if the decedent is
survived by an Indian heir of
the first or second degree, the
devise or inheritance interests
shall descend in accordance
with paragraph (3)(A); and
``(bb) if the decedent is
not survived by an Indian heir
of the first or second degree,
the devise or inheritance
interests shall descend in
accordance with paragraph
(3)(C).
``(iii) No surviving spouse.--If a decedent
is not survived by a spouse, and the estate of
the decedent includes 1 or more acquired
interests or 1 or more devise or inheritance
interests--
``(I) if the decedent is survived
by an Indian heir of the first or
second degree, the acquired interests
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