Collapse to view only § 2201. Definitions
- § 2201. Definitions
- § 2202. Other applicable provisions
- § 2203. Adoption of land consolidation plan with approval of Secretary
- § 2204. Purchase of trust or restricted or controlled lands at no less than fair market value; requisite conditions
- § 2205. Tribal probate codes; acquisitions of fractional interests by tribes
- § 2206. Descent and distribution
- § 2207. Full faith and credit to tribal actions under tribal ordinances limiting descent and distribution of trust or restricted or controlled lands
- § 2208. Conveyancing authority upon sale or exchange of tribal lands; removal of trust status of individually owned lands
- § 2209. Trusteeship title of United States for any Indian or Indian tribe
- § 2210. Tax exemption
- § 2211. Governing body of tribe; construction of chapter as not vesting with authority not authorized by tribal constitution or by-laws
- § 2212. Fractional interest acquisition program
- § 2213. Administration of acquired fractional interests; disposition of proceeds
- § 2214. Establishing fair market value
- § 2215. Acquisition Fund
- § 2216. Trust and restricted land transactions
- § 2217. Reports to Congress
- § 2218. Approval of leases, rights-of-way, and sales of natural resources
- § 2219. Application to Alaska
- § 2220. Owner-managed interests
- § 2221. Annual notice and filing; current whereabouts of interest owners
§ 2201. DefinitionsFor the purpose of this chapter—
(1) “Indian tribe” or “tribe” means any Indian tribe, band, group, pueblo, or community for which, or for the members of which, the United States holds lands in trust;
(2) “Indian” means—
(A) any person who is a member of any Indian tribe, is eligible to become a member of any Indian tribe, or is an owner (as of October 27, 2004) of a trust or restricted interest in land;
(B) any person meeting the definition of Indian under the Indian Reorganization Act (25 U.S.C. 479) 1
1 See References in Text note below.
and the regulations promulgated thereunder; and(C) with respect to the inheritance and ownership of trust or restricted land in the State of California pursuant to section 2206 of this title, any person described in subparagraph (A) or (B) or any person who owns a trust or restricted interest in a parcel of such land in that State.2
2 So in original. The period probably should be a semicolon.
(3) “Secretary” means the Secretary of the Interior;
(4)
(i) “trust or restricted lands” means lands, title to which is held by the United States in trust for an Indian tribe or individual, or which is held by an Indian tribe or individual subject to a restriction by the United States against alienation; and (ii) “trust or restricted interest in land” or “trust or restricted interest in a parcel of land” means an interest in land, the title to which interest is held in trust by the United States for an Indian tribe or individual, or which is held by an Indian tribe or individual subject to a restriction by the United States against alienation.
(5) “heirs of the first or second degree” means parents, children, grandchildren, grandparents, brothers and sisters of a decedent.2
(6) “parcel of highly fractionated Indian land” means a parcel of land that the Secretary, pursuant to authority under a provision of this chapter, determines to have, as evidenced by the Secretary’s records at the time of the determination—
(A) 50 or more but less than 100 co-owners of undivided trust or restricted interests, and no 1 of such co-owners holds a total undivided trust or restricted interest in the parcel that is greater than 10 percent of the entire undivided ownership of the parcel; or
(B) 100 or more co-owners of undivided trust or restricted interests;
(7) the term “land” means any real property;
(8) “person” or “individual” means a natural person;
(9) “eligible heirs” means, for purposes of section 2206 of this title, any of a decedent’s children, grandchildren, great grandchildren, full siblings, half siblings by blood, and parents who are—
(A) Indian; or
(B) lineal descendents within 2 degrees of consanguinity of an Indian; or
(C) owners of a trust or restricted interest in a parcel of land for purposes of inheriting by descent, renunciation, or consolidation agreement under section 2206 of this title, another trust or restricted interest in such parcel from the decedent; and
(10) “without regard to waste” means, with respect to a life estate interest in land, that the holder of such estate is entitled to the receipt of all income, including bonuses and royalties, from such land to the exclusion of the remaindermen.
(Pub. L. 97–459, title II, § 202, Jan. 12, 1983, 96 Stat. 2517; Pub. L. 106–462, title I, § 103(1), Nov. 7, 2000, 114 Stat. 1992; Pub. L. 108–374, § 6(b), Oct. 27, 2004, 118 Stat. 1804; Pub. L. 110–453, title II, § 207(a), Dec. 2, 2008, 122 Stat. 5030.)
§ 2202. Other applicable provisions
The provisions of section 5108 of this title shall apply to all tribes notwithstanding the provisions of section 5125 of this title: Provided, That nothing in this section is intended to supersede any other provision of Federal law which authorizes, prohibits, or restricts the acquisition of land for Indians with respect to any specific tribe, reservation, or state(s).
(Pub. L. 97–459, title II, § 203, Jan. 12, 1983, 96 Stat. 2517.)
§ 2203. Adoption of land consolidation plan with approval of Secretary
(a) Statement of purpose; sales or exchanges: terms and conditions
Notwithstanding any other provision of law, any tribe, acting through its governing body, is authorized, with the approval of the Secretary to adopt a land consolidation plan providing for the sale or exchange of any tribal lands or interest in lands for the purpose of eliminating undivided fractional interests in Indian trust or restricted lands or consolidating its tribal landholdings: Provided, That—
(1) except as provided by subsection (c), the sale price or exchange value received by the tribe for land or interests in land covered by this section shall be no less than within 10 per centum of the fair market value as determined by the Secretary;
(2) if the tribal land involved in an exchange is of greater or lesser value than the land for which it is being exchanged, the tribe may accept or give cash in such exchange in order to equalize the values of the property exchanged;
(3) any proceeds from the sale of land or interests in land or proceeds received by the tribe to equalize an exchange made pursuant to this section shall be used exclusively for the purchase of other land or interests in land;
(4) the Secretary shall maintain a separate trust account for each tribe selling or exchanging land pursuant to this section consisting of the proceeds of the land sales and exchanges and shall release such funds only for the purpose of buying lands under this section; and
(5) any tribe may retain the mineral rights to such sold or exchanged lands and the Secretary shall assist such tribe in determining the value of such mineral rights and shall take such value into consideration in determining the fair market value of such lands.
(b) Conveyancing requirement; specific findings for nonexecution
(c) Below market value conveyance of Cherokee Nation of Oklahoma homesites
(Pub. L. 97–459, title II, § 204, Jan. 12, 1983, 96 Stat. 2517; Pub. L. 98–608, § 1(1), Oct. 30, 1984, 98 Stat. 3171; Pub. L. 102–238, § 3, Dec. 17, 1991, 105 Stat. 1908.)
§ 2204. Purchase of trust or restricted or controlled lands at no less than fair market value; requisite conditions
(a) Purchase of land
(1) In generalSubject to subsection (b), any Indian tribe may purchase, at not less than fair market value and with the consent of the owners of the interests, part or all of the interests in—
(A) any tract of trust or restricted land within the boundaries of the reservation of the tribe; or
(B) land that is otherwise subject to the jurisdiction of the tribe.
(2) Required consent
(A) In general
(B) Interest owned by tribe
(b) Conditions applicable to purchaseSubsection (a) applies on the condition that—
(1) any Indian owning any undivided interest, and in actual use and possession of such tract for at least three years preceding the tribal initiative, may purchase such tract by matching the tribal offer;
(2) if at any time within five years following the date of acquisition of such land by an individual pursuant to this section, such property is offered for sale or a petition is filed with the Secretary for removal of the property from trust or restricted status, the tribe shall have 180 days from the date it is notified of such offer or petition to acquire such property by paying to the owner the fair market value as determined by the Secretary; and
(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 2203 of this title.
(c) Partition of highly fractionated Indian lands
(1) Applicability
(2) RequirementsEach partition action under this subsection shall be conducted by the Secretary in accordance with the following requirements:
(A) ApplicationUpon receipt of any payment or bond required under subparagraph (B), the Secretary shall commence a process for partitioning a parcel of land by sale in accordance with the provisions of this subsection upon receipt of an application by—
(i) the Indian tribe with jurisdiction over the subject land that owns an undivided interest in the parcel of land; or
(ii) any person owning an undivided interest in the parcel of land who is eligible to bid at the sale of the parcel pursuant to subclause (II), (III), or (IV) of subparagraph (I)(i);
(B) Costs of serving notice and publication
(C) Determination
(D) Consent requirements
(i) In generalA parcel of land may be partitioned under this subsection only if the applicant obtains the written consent of—(I) the Indian tribe with jurisdiction over the subject land if such Indian tribe owns an undivided interest in the parcel;(II) any owner who, for the 3-year period immediately preceding the date on which the Secretary receives the application, has(aa) continuously maintained a bona fide residence on the parcel; or(bb) operated a bona fide farm, ranch, or other business on the parcel; and(III) the owners (including parents of minor owners and legal guardians of incompetent owners) of at least 50 percent of the undivided interests in the parcel, but only in cases where the Secretary determines that, based on the final appraisal prepared pursuant to subparagraph (F), any 1 owner’s total undivided interest in the parcel (not including the interest of an Indian tribe or that of the owner requesting the partition) has a value in excess of $1,500.
Any consent required by this clause must be in writing and acknowledged before a notary public (or other official authorized to make acknowledgments), and shall be approved by the Secretary unless the Secretary has reason to believe that the consent was obtained as a result of fraud or undue influence.
(ii) Consent by the Secretary on behalf of certain individualsFor the purposes of clause (i)(III), the Secretary may consent on behalf of—(I) undetermined heirs of trust or restricted interests and owners of such interests who are minors and legal incompetents having no parents or legal guardian; and(II) missing owners or owners of trust or restricted interests whose whereabouts are unknown, but only after a search for such owners has been completed in accordance with the provisions of this subsection.
(E) Appraisal
(F) Notice to owners on completion of appraisalUpon completion of the appraisal, the Secretary shall give notice of the requested partition and appraisal to all owners of undivided interests in the parcel, in accordance with principles of due process. Such notice shall include the following requirements:
(i) Written noticeThe Secretary shall attempt to give each owner written notice of the partition action stating the following:(I) That a proceeding to partition the parcel of land by sale has been commenced.(II) The legal description of the subject parcel.(III) The owner’s ownership interest in the subject parcel as evidenced by the Secretary’s records as of the date that owners are determined in accordance with clause (ii).(IV) The results of the appraisal.(V) The owner’s right to receive a copy of the appraisal upon written request.(VI) The owner’s right to comment on or object to the proposed partition and the appraisal.(VII) That the owner must timely comment on or object in writing to the proposed partition or the appraisal, in order to receive notice of approval of the appraisal and right to appeal.(VIII) The date by which the owner’s written comments or objections must be received, which shall not be less than 90 days after the date that the notice is mailed under this clause or last published under clause (ii)(II).(IX) The address for requesting copies of the appraisal and for submitting written comments or objections.(X) The name and telephone number of the official to be contacted for purposes of obtaining information regarding the proceeding, including the time and date of the auction of the land or the date for submitting sealed bids.(XI) Any other information the Secretary deems to be appropriate.
(ii) Manner of service(I) Service by certified mail(II) Notice by publicationThe Secretary shall give notice by publication of the partition proceedings to all owners that the Secretary was unable to serve pursuant to subclause (I), and to unknown heirs and assigns by—(aa) publishing the notice described in clause (i) at least 2 times in a newspaper of general circulation in the county or counties where the subject parcel of land is located or, if there is an Indian tribe with jurisdiction over the parcel of land and that tribe publishes a tribal newspaper or newsletter at least once every month, 1 time in such newspaper of general circulation and 1 time in such tribal newspaper or newsletter;(bb) posting such notice in a conspicuous place in the tribal headquarters or administration building (or such other tribal building determined by the Secretary to be most appropriate for giving public notice) of the Indian tribe with jurisdiction over the parcel of land, if any; and(cc) in addition to the foregoing, in the Secretary’s discretion, publishing notice in any other place or means that the Secretary determines to be appropriate.
(G) Review of comments on appraisal
(i) In general(I) order a new appraisal; or(II) approve the appraisal;
(ii) NoticeNotice shall be given—(I) in accordance with subparagraph (H), where the new appraisal results in a value of the land that is equal to or greater than that of the earlier appraisal; or(II) in accordance with subparagraph (F)(ii), where the new appraisal results in a lower valuation of the land.
(H) Notice to owners of approval of appraisal and right to appealUpon making the determination under subparagraph (G), the Secretary shall provide to the Indian tribe with jurisdiction over the subject land and to all persons who submitted written comments on or objections to the proposed partition or appraisal, a written notice to be served on such tribe and persons by certified mail. Such notice shall state—
(i) the results of the appraisal;
(ii) that the owner has the right to review a copy of the appraisal upon request;
(iii) that the land will be sold for not less than the appraised value, subject to the consent requirements under paragraph (2)(D);
(iv) the time of the sale or for submitting bids under subparagraph (I);
(v) that the owner has the right, under the Secretary’s regulations governing administrative appeals, to pursue an administrative appeal from—(I) the determination that the land may be partitioned by sale under the provisions of this section; and(II) the Secretary’s order approving the appraisal;
(vi) the date by which an administrative appeal must be taken, a citation to the provisions of the Secretary’s regulations that will govern the owner’s appeal, and any other information required by such regulations to be given to parties affected by adverse decisions of the Secretary;
(vii) in cases where the Secretary determines that any person’s undivided trust or restricted interest in the parcel exceeds $1,500 pursuant to paragraph (2)(D)(iii), that the Secretary has authority to consent to the partition on behalf of undetermined heirs of trust or restricted interests in the parcel and owners of such interests whose whereabouts are unknown; and
(viii) any other information the Secretary deems to be appropriate.
(I) Sale to eligible purchaser
(i) In generalSubject to clauses (ii) and (iii) and the consent requirements of paragraph (2)(D), the Secretary shall, after providing notice to owners under subparagraph (H), including the time and place of sale or for receiving sealed bids, at public auction or by sealed bid (whichever of such methods of sale the Secretary determines to be more appropriate under the circumstances) sell the parcel of land by competitive bid for not less than the final appraised fair market value to the highest bidder from among the following eligible bidders:(I) The Indian tribe, if any, with jurisdiction over the trust or restricted interests in the parcel being sold.(II) Any person who is a member, or is eligible to be a member, of the Indian tribe described in subclause (I).(III) Any person who is a member, or is eligible to be a member, of an Indian tribe but not of the tribe described in subclause (I), but only if such person already owns an undivided interest in the parcel at the time of sale.(IV) Any lineal descendent of the original allottee of the parcel who is a member or is eligible to be a member of an Indian tribe or, with respect to a parcel located in the State of California that is not within an Indian tribe’s reservation or not otherwise subject to the jurisdiction of an Indian tribe, who is a member, or eligible to be a member, of an Indian tribe or owns a trust or restricted interest in the parcel.
(ii) Right to match highest bidIf the highest bidder is a person who is only eligible to bid under clause (i)(III), the Indian tribe that has jurisdiction over the parcel, if any, shall have the right to match the highest bid and acquire the parcel, but only if—(I) prior to the date of the sale, the governing body of such tribe has adopted a tribal law or resolution reserving its right to match the bids of such nonmember bidders in partition sales under this subsection and delivered a copy of such law or resolution to the Secretary; and(II) the parcel is not acquired under clause (iii).
(iii) Right to purchaseAny person who is a member, or eligible to be a member, of the Indian tribe with jurisdiction over the trust or restricted interests in the parcel being sold and is, as of the time of sale under this subparagraph, the owner of the largest undivided interest in the parcel shall have a right to purchase the parcel by tendering to the Secretary an amount equal to the highest sufficient bid submitted at the sale, less that amount of the bid attributable to such owner’s share, but only if—(I) the owner submitted a sufficient bid at the sale;(II) the owner’s total undivided interest in the parcel immediately prior to the sale was—(aa) greater than the undivided interest held by any other co-owners, except where there are 2 or more co-owners whose interests are of equal size but larger than the interests of all other co-owners and such owners of the largest interests have agreed in writing that 1 of them may exercise the right of purchase under this clause; and(bb) equal to or greater than 20 percent of the entire undivided ownership of the parcel;(III) within 3 days following the date of the auction or for receiving sealed bids, and in accordance with the regulations adopted to implement this section (if any), the owner delivers to the Secretary a written notice of intent to exercise the owner’s rights under this clause; and(IV) such owner tenders the amount of the purchase price required under this clause—(aa) not more than 30 days after the date of the auction or time for receiving sealed bids; and(bb) in accordance with any requirements of the regulations promulgated under paragraph (5).
(iv) Interest acquired
(J) Proceeds of sale
(i) Subject to clauses (ii) and (iii), the Secretary shall distribute the proceeds of sale of a parcel of land under the provisions of this section to the owners of interests in such parcel in proportion to their respective ownership interests.
(ii) Proceeds attributable to the sale of trust or restricted interests shall be maintained in accounts as trust personalty.
(iii) Proceeds attributable to the sale of interests of owners whose whereabouts are unknown, of undetermined heirs, and of other persons whose ownership interests have not been recorded shall be held by the Secretary until such owners, heirs, or other persons have been determined, at which time such proceeds shall be distributed in accordance with clauses (i) and (ii).
(K) Lack of bids or consent
(i) Lack of bidsIf no bidder described in subparagraph (I) presents a bid that equals or exceeds the final appraised value, the Secretary may either—(I) purchase the parcel of land for its appraised fair market value on behalf of the Indian tribe with jurisdiction over the land, subject to the lien and procedures provided under section 2213(b) of this title; or(II) terminate the partition process.
(ii) Lack of consent
(3) Enforcement
(A) In generalIf a partition is approved under this subsection and an owner of an interest in the parcel of land refuses to surrender possession in accordance with the partition decision, or refuses to execute any conveyance necessary to implement the partition, then any affected owner or the United States may—
(i) commence a civil action in the United States district court for the district in which the parcel of land is located; and
(ii) request that the court issue an order for ejectment or any other appropriate remedy necessary for the partition of the land by sale.
(B) Federal roleWith respect to any civil action brought under subparagraph (A)—
(i) the United States—(I) shall receive notice of the civil action; and(II) may be a party to the civil action; and
(ii) the civil action shall not be dismissed, and no relief requested shall be denied, on the ground that the civil action is against the United States or that the United States is a necessary and indispensable party.
(4) Grants and loansThe Secretary may provide grants and low interest loans to successful bidders at sales authorized by this subsection, provided that—
(A) the total amount of such assistance in any such sale shall not exceed 20 percent of the appraised value of the parcel of land sold; and
(B) the grant or loan funds provided shall only be applied toward the purchase price of the parcel of land sold.
(5) Regulations
(Pub. L. 97–459, title II, § 205, Jan. 12, 1983, 96 Stat. 2517; Pub. L. 98–608, § 1(2), Oct. 30, 1984, 98 Stat. 3171; Pub. L. 106–462, title I, § 103(2), Nov. 7, 2000, 114 Stat. 1993; Pub. L. 108–374, §§ 4, 6(a)(1), Oct. 27, 2004, 118 Stat. 1787, 1797; Pub. L. 109–157, §§ 2, 8(a)(1), Dec. 30, 2005, 119 Stat. 2949, 2952; Pub. L. 110–453, title II, § 207(b), Dec. 2, 2008, 122 Stat. 5030.)
§ 2205. 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) Tribal probate codes
Except as provided in any applicable Federal law, the Secretary shall not approve a tribal probate code, or an amendment to such a code, that prohibits the devise of an interest in trust or restricted land to—
(A) an Indian lineal descendant of the original allottee; or
(B) an Indian who is not a member of the Indian tribe with jurisdiction over such an interest;
unless the code provides for—
(i) the renouncing of interests to eligible devisees in accordance with the code;
(ii) the opportunity for a devisee who is the spouse or lineal descendant of a testator to reserve a life estate without regard to waste; and
(iii) payment of fair market value in the manner prescribed under subsection (c)(2).
(b) Secretarial approval
(1) In general
(2) Review and approval
(A) In general
(B) Consequence of failures to approve or disapprove a tribal probate code
(C) Consistency of tribal probate code with chapter
(D) Explanation
(E) Amendments
(i) In general
(ii) Consequence of failure to approve or disapprove an amendment
(3) Effective dates
A tribal probate code approved under paragraph (2) shall become effective on the later of—
(A) the date that is 1 year after the date on which the Secretary makes the certification required under section 8(a)(4) of the American Indian Probate Reform Act of 2004 (25 U.S.C. 2201 note; Public Law 108–374); or
(B) 180 days after the date of approval.
(4) Limitations
(A) Tribal probate codes
(B) Amendments to tribal probate codes
(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) Authority
(A) In general
(B) Transfer
(2) Limitation
(A) Inapplicability to certain interests
(i) In general
Paragraph (1) shall not apply to an interest in trust or restricted land if—
(I) while the decedent’s estate is pending before the Secretary, the non-Indian devisee renounces the interest in favor of an Indian person; or(II)(aa) the interest is part of a family farm that is devised to a member of the family of the decedent; and(bb) the devisee agrees in writing that the Indian tribe with jurisdiction over the land will have the opportunity to acquire the interest for fair market value if the interest is offered for sale to a person or entity that is not a member of the family of the owner of the land.(ii) Recording of interest
(iii) Mortgage and foreclosure
Nothing in clause (i)(II) limits—
(I) the ability of an owner of land to which that clause applies to mortgage the land; or(II) the right of the entity holding such a mortgage to foreclose or otherwise enforce such a mortgage agreement in accordance with applicable law.(iv) Definition of “member of the family”
In this paragraph, the term “member of the family”, with respect to a decedent or landowner, means—
(I) a lineal descendant of a decedent or landowner;(II) a lineal descendant of the grandparent of a decedent or landowner;(III) the spouse of a descendant or landowner described in subclause (I) or (II); and(IV) the spouse of a decedent or landowner.(B) Reservation of life estate
(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
(2) Regulations
(Pub. L. 97–459, title II, § 206, as added Pub. L. 106–462, title I, § 103(3), Nov. 7, 2000, 114 Stat. 1993; amended Pub. L. 108–374, § 6(a)(3), Oct. 27, 2004, 118 Stat. 1799; Pub. L. 109–157, § 3, Dec. 30, 2005, 119 Stat. 2950.)
§ 2206. Descent and distribution
(a) Nontestamentary disposition
(1) Rules of descentSubject to any applicable Federal law relating to the devise or descent of trust or restricted property, any trust or restricted interest in land or interest in trust personalty that is not disposed of by a valid will—
(A) shall descend according to an applicable tribal probate code approved in accordance with section 2205 of this title; or
(B) in the case of a trust or restricted interest in land or interest in trust personalty to which a tribal probate code does not apply, shall descend in accordance with—
(i) paragraphs (2) through (5); and
(ii) other applicable Federal law.
(2)1
1 So in original. Another par. (2) follows par. (5).
Rules governing descent of estate(A) Surviving spouseIf there is a surviving spouse of the decedent, such spouse shall receive trust and restricted land and trust personalty in the estate as follows:
(i) If the decedent is survived by 1 or more eligible heirs described in subparagraph (B)(i), (ii), (iii), or (iv), the surviving spouse shall receive ⅓ of the trust personalty of the decedent and a life estate without regard to waste in the interests in trust or restricted lands of the decedent.
(ii) If there are no eligible heirs described in subparagraph (B)(i), (ii), (iii), or (iv), the surviving spouse shall receive all of the trust personalty of the decedent and a life estate without regard to waste in the trust or restricted lands of the decedent.
(iii) The remainder shall pass as set forth in subparagraph (B).
(iv) Trust personalty passing to a surviving spouse under the provisions of this subparagraph shall be maintained by the Secretary in an account as trust personalty, but only if such spouse is Indian.
(B) Individual and tribal heirsWhere there is no surviving spouse of the decedent, or there is a remainder interest pursuant to subparagraph (A), the trust or restricted estate or such remainder shall, subject to subparagraphs (A) and (D), pass as follows:
(i) To those of the decedent’s children who are eligible heirs (or if 1 or more of such children do not survive the decedent, the children of any such deceased child who are eligible heirs, by right of representation, but only if such children of the deceased child survive the decedent) in equal shares.
(ii) If the property does not pass under clause (i), to those of the decedent’s surviving great-grandchildren who are eligible heirs, in equal shares.
(iii) If the property does not pass under clause (i) or (ii), to the decedent’s surviving parent who is an eligible heir, and if both parents survive the decedent and are both eligible heirs, to both parents in equal shares.
(iv) If the property does not pass under clause (i), (ii), or (iii), to those of the decedent’s surviving siblings who are eligible heirs, in equal shares.
(v) If the property does not pass under clause (i), (ii), (iii), or (iv), to the Indian tribe with jurisdiction over the interests in trust or restricted lands;
except that notwithstanding clause (v), an Indian co-owner (including the Indian tribe referred to in clause (v)) of a parcel of trust or restricted land may acquire an interest that would otherwise descend under that clause by paying into the estate of the decedent, before the close of the probate of the estate, the fair market value of the interest in the land; if more than 1 Indian co-owner offers to pay for such interest, the highest bidder shall acquire the interest.
(C) No Indian tribe
(i) In general
(ii) Contiguous parcel
(D) Intestate descent of small fractional interests in land
(i) General rule
(ii) Surviving spouse
(iii) Single heir ruleWhere there is no life estate created under clause (ii) or there is a remainder interest under that clause, the trust or restricted interest or remainder interest that is subject to this subparagraph shall descend, in trust or restricted status, to—(I) the decedent’s surviving child, but only if such child is an eligible heir; and if 2 or more surviving children are eligible heirs, then to the oldest of such children;(II) if the interest does not pass under subclause (I), the decedent’s surviving grandchild, but only if such grandchild is an eligible heir; and if 2 or more surviving grandchildren are eligible heirs, then to the oldest of such grandchildren;(III) if the interest does not pass under subclause (I) or (II), the decedent’s surviving great grandchild, but only if such great grandchild is an eligible heir; and if 2 or more surviving great grandchildren are eligible heirs, then to the oldest of such great grandchildren;(IV) if the interest does not pass under subclause (I), (II), or (III), the Indian tribe with jurisdiction over the interest; or(V) if the interest does not pass under subclause (I), (II), or (III), and there is no such Indian tribe to inherit the property under subclause (IV), the interest shall be divided equally among co-owners of trust or restricted interests in the parcel; and if there are no such co-owners, then to the United States, to be sold, and the proceeds from sale used, in the same manner provided in subparagraph (C).
The determination of which person is the oldest eligible heir for inheritance purposes under this clause shall be made by the Secretary in the decedent’s probate proceeding and shall be consistent with the provisions of this chapter.
(iv) ExceptionsNotwithstanding clause (iii)—(I)(aa) the heir of an interest under this subparagraph, unless the heir is a minor or incompetent person, may agree in writing entered into the record of the decedent’s probate proceeding to renounce such interest, in trust or restricted status, in favor of—(AA) any other eligible heir or Indian person related to the heir by blood, but in any case never in favor of more than 1 such heir or person;(BB) not more than 1 co-owner of another trust or restricted interest in such parcel of land; or(CC) the Indian tribe with jurisdiction over the interest, if any; and(bb) the Secretary shall give effect to such agreement in the distribution of the interest in the probate proceeding; and(II) the governing body of the Indian tribe with jurisdiction over an interest in trust or restricted land that is subject to the provisions of this subparagraph may adopt a rule of intestate descent applicable to such interest that differs from the order of descent set forth in clause (iii). The Secretary shall apply such rule to the interest in distributing the decedent’s estate, but only if—(aa) a copy of the tribal rule is delivered to the official designated by the Secretary to receive copies of tribal rules for the purposes of this clause;(bb) the tribal rule provides for the intestate inheritance of such interest by no more than 1 heir, so that the interest does not further fractionate;(cc) the tribal rule does not apply to any interest disposed of by a valid will;(dd) the decedent died on or after the date described in subsection (b) of section 8 of the American Indian Probate 2
2 So in original. Probably should be followed by “Reform”.
Act of 2004, or on or after the date on which a copy of the tribal rule was delivered to the Secretary pursuant to item (aa), whichever is later; and(ee) the Secretary does not make a determination within 90 days after a copy of the tribal rule is delivered pursuant to item (aa) that the rule would be unreasonably difficult to administer or does not conform with the requirements in item (bb) or (cc).(v) Effect of subparagraph
(3) Right of representation
(4) Special rule relating to survivalIn the case of intestate succession under this subsection, if an individual fails to survive the decedent by at least 120 hours, as established by clear and convincing evidence—
(A) the individual shall be deemed to have predeceased the decedent for the purpose of intestate succession; and
(B) the heirs of the decedent shall be determined in accordance with this section.
(5) Status of inherited interests
(2)3
3 So in original. Another par. (2) follows par. (1).
Intestate descent of permanent improvements(A) Definition of covered permanent improvementIn this paragraph, the term “covered permanent improvement” means a permanent improvement (including an interest in such an improvement) that is—
(i) included in the estate of a decedent; and
(ii) attached to a parcel of trust or restricted land that is also, in whole or in part, included in the estate of that decedent.
(B) Rule of descentExcept as otherwise provided in a tribal probate code approved under section 2205 of this title or a consolidation agreement approved under subsection (j)(9), a covered permanent improvement in the estate of a decedent shall—
(i) descend to each eligible heir to whom the trust or restricted interest in land in the estate descends pursuant to this subsection; or
(ii) pass to the recipient of the trust or restricted interest in land in the estate pursuant to a renunciation under subsection (j)(8).
(C) Application and effectThe provisions of this paragraph apply to a covered permanent improvement—
(i) even though that covered permanent improvement is not held in trust; and
(ii) without altering or otherwise affecting the non-trust status of such a covered permanent improvement.’ 4
4 So in original. The quotation mark probably should not appear.
(b) Testamentary disposition
(1) General devise of an interest in trust or restricted land
(A) In generalSubject to any applicable Federal law relating to the devise or descent of trust or restricted land, or a tribal probate code approved by the Secretary in accordance with section 2205 of this title, the owner of a trust or restricted interest in land may devise such interest to—
(i) any lineal descendant of the testator;
(ii) any person who owns a preexisting undivided trust or restricted interest in the same parcel of land;
(iii) the Indian tribe with jurisdiction over the interest in land; or
(iv) any Indian;
in trust or restricted status.
(B) Rules of interpretation
(2) Devise of trust or restricted land as a life estate or in fee
(A) In generalExcept as provided under any applicable Federal law, any trust or restricted interest in land that is not devised in accordance with paragraph (1)(A) may be devised only—
(i) as a life estate to any person, with the remainder being devised only in accordance with subparagraph (B) or paragraph (1); or
(ii) except as provided in subparagraph (B), as a fee interest without Federal restrictions against alienation to any person who is not eligible to be a devisee under clause (iv) of paragraph (1)(A).
(B) Indian reorganization act lands
(i) In generalSubject to clauses (ii) and (iii), any interest”; 5
5 So in original.
in trust or restricted land that is subject to section 5107 of this title, may be devised only in accordance with—(I) that section;(II) subparagraph (A)(i); or(III) paragraph (1)(A).(ii) Exception(I) In general(II) Effect(III) Notice of request
(iii) Effect
(3) General devise of an interest in trust personalty
(A) Trust personality 7
7 So in original. Probably should be “personalty”.
defined(B) In general
(C) Maintenance as trust personalty
(D) Direct disbursement and distribution
(4) Invalid devises and wills
(A) Land
(B) Personalty
(c) Joint tenancy; right of survivorship
(1) Presumption of joint tenancy
(2) Exception
(d) Descent of off-reservation lands
(1) Indian reservation definedFor purposes of this subsection, the term “Indian reservation” includes lands located within—
(A)
(i) Oklahoma; and
(ii) the boundaries of an Indian tribe’s former reservation (as defined and determined by the Secretary);
(B) the boundaries of any Indian tribe’s current or former reservation; or
(C) any area where the Secretary is required to provide special assistance or consideration of a tribe’s acquisition of land or interests in land.
(2) DescentExcept in the State of California, upon the death of an individual holding an interest in trust or restricted lands that are located outside the boundaries of an Indian reservation and that are not subject to the jurisdiction of any Indian tribe, that interest shall descend either—
(A) by testate or intestate succession in trust to an Indian; or
(B) in fee status to any other devises or heirs.
(e) Approval of agreements
(f) Estate planning assistance
(1) In general
(A) The activities conducted under this subsection shall be conducted in accordance with any applicable—
(i) tribal probate code; or
(ii) tribal land consolidation plan.
(B) The Secretary shall provide estate planning assistance in accordance with this subsection, to the extent amounts are appropriated for such purpose.
(2) RequirementsThe estate planning assistance provided under paragraph (1) shall be designed to—
(A) inform, advise, and assist Indian landowners with respect to estate planning in order to facilitate the transfer of trust or restricted lands to a devisee or devisees selected by the landowners;
(B) dramatically increase the use of wills and other methods of devise among Indian landowners;
(C) substantially reduce the quantity and complexity of Indian estates that pass intestate through the probate process, while protecting the rights and interests of Indian landowners; and
(D) assist Indian landowners in accessing information pursuant to section 2216(e) of this title.
(3) Probate code development and legal assistance grantsIn carrying out this section, the Secretary may award grants, including noncompetitive grants, to—
(A) Indian tribes, for purposes of tribal probate code development and estate planning services to tribal members;
(B) organizations that provide legal assistance services for Indian tribes, Indian organizations, and individual owners of interests in trust or restricted lands that are qualified as nonprofit organizations under section 501(c)(3) of title 26 and provide such services pursuant to Federal poverty guidelines, for purposes of providing civil legal assistance to such Indian tribes, individual owners, and Indian organizations for the development of tribal probate codes, for estate planning services or for other purposes consistent with the services they provide to Indians and Indian tribes; and
(C) in specific areas and reservations where qualified nonprofit organizations referred to in subparagraph (B) do not provide such legal assistance to Indian tribes, Indian organizations, or individual owners of trust or restricted land, to other providers of such legal assistance;
that submit an application to the Secretary, in such form and manner as the Secretary may prescribe.
(4) Authorization for appropriations
(g) Applicable Federal law
(1) In generalAny references in subsections (a) and (b) to applicable Federal law include—
(A)Public Law 91–627 (84 Stat. 1874);
(B)Public Law 92–377 (86 Stat. 530);
(C)Public Law 92–443 (86 Stat. 744);
(D)Public Law 96–274 (94 Stat. 537); and
(E)Public Law 98–513 (98 Stat. 2411).
(2) No effect on lawsNothing in this chapter amends or otherwise affects the application of any law specified in paragraph (1), or any other Federal law that pertains specifically to—
(A) trust or restricted land located on 1 or more specific Indian reservations that are expressly identified in such law; or
(B) the allotted land (or any interest relating to such land) of 1 or more specific Indian tribes expressly identified in such law, including any of the Federal laws governing the probate or determination of heirs associated with, or otherwise relating to, the land, interest in land, or other interests or assets that are owned by individuals in—
(i) Five Civilized Tribes restricted fee status; or
(ii) Osage Tribe restricted fee status.
(3) Limitation on effect of paragraph
(h) Rules of interpretationIn the absence of a contrary intent, and except as otherwise provided under this chapter, applicable Federal law, or a tribal probate code approved by the Secretary pursuant to section 2205 of this title, wills shall be construed as to trust and restricted land and trust personalty in accordance with the following rules:
(1) Construction that will passes all property
(A) In general
(B) Permanent improvements
(C) Application and effectThe provisions of this paragraph apply to a covered permanent improvement—
(i) even though that covered permanent improvement is not held in trust; and
(ii) without altering or otherwise affecting the non-trust status of such a covered permanent improvement.
(2) Class gifts
(A) No differentiation between relationship by blood and relationship by affinity
(B) Meaning of “heirs” and “next of kin”, etc.; time of ascertaining class
(C) Time for ascertaining class
(3) Meaning of “die without issue” and similar phrases
(4) Persons born out of wedlock
(5) Lapsed devises
(6) Void devises
(7) Family cemetery plot
(i) Heirship by killing
(1) Heir by killing defined
(2) No acquisition of property by killing
(3) Descent, distribution, and right of survivorshipThe heir by killing shall be deemed to have predeceased the decedent as to decedent’s trust or restricted interests in land or trust personalty which would have passed from the decedent or his estate to such heir—
(A) under intestate succession under this section;
(B) under a tribal probate code, unless otherwise provided for;
(C) as the surviving spouse;
(D) by devise;
(E) as a reversion or a vested remainder;
(F) as a survivorship interest; and
(G) as a contingent remainder or executory or other future interest.
(4) Joint tenants, joint owners, and joint obligees
(A) Any trust or restricted land or trust personalty held by only the heir by killing and the decedent as joint tenants, joint owners, or joint obligees shall pass upon the death of the decedent to his or her estate, as if the heir by killing had predeceased the decedent.
(B) As to trust or restricted land or trust personalty held jointly by 3 or more persons, including both the heir by killing and the decedent, any income which would have accrued to the heir by killing as a result of the death of the decedent shall pass to the estate of the decedent as if the heir by killing had predeceased the decedent and any surviving joint tenants.
(C) Notwithstanding any other provision of this subsection, the decedent’s trust or restricted interest in land or trust personalty that is held in a joint tenancy with the right of survivorship shall be severed from the joint tenancy as though the property held in the joint tenancy were to be severed and distributed equally among the joint tenants and the decedent’s interest shall pass to his estate; the remainder of the interests shall remain in joint tenancy with right of survivorship among the surviving joint tenants.
(5) Life estate for the life of another
(6) Preadjudication rule
(A) In general
(B) Dismissal or withdrawal
(C) Conviction
(7) Broad construction; policy of subsection
(j) General rules governing probate
(1) Scope
(2) Pretermitted spouses and children
(A) Spouses
(i) In general
(ii) ExceptionClause (i) shall not apply to a trust or restricted interest in land where—(I) the will of a testator is executed before the date that is 1 year after the date on which the Secretary publishes a notice of certification under section 8(a)(4) of the American Indian Probate Reform Act of 2004 (25 U.S.C. 2201 note; Public Law 108–374);(II)(aa) the spouse of a testator is a non-Indian; and(bb) the testator devised the interests in trust or restricted land of the testator to 1 or more Indians;(III) it appears, based on an examination of the will or other evidence, that the will was made in contemplation of the marriage of the testator to the surviving spouse;(IV) the will expresses the intention that the will is to be effective notwithstanding any subsequent marriage; or(V)(aa) the testator provided for the spouse by a transfer of funds or property outside the will; and(bb) an intent that the transfer be in lieu of a testamentary provision is demonstrated by statements of the testator or through a reasonable inference based on the amount of the transfer or other evidence.
(iii) Spouses married at the time of the willShould the surviving spouse of the testator be omitted from the will of the testator, the surviving spouse shall be treated, for purposes of trust or restricted land or trust personalty in the testator’s estate, in accordance with subsection (a)(2)(A), as though there was no will but only if—(I) the testator and surviving spouse were continuously married without legal separation for the 5-year period preceding the decedent’s death;(II) the testator and surviving spouse have a surviving child who is the child of the testator;(III) the surviving spouse has made substantial payments toward the purchase of, or improvements to, the trust or restricted land in such estate; or(IV) the surviving spouse is under a binding obligation to continue making loan payments for the trust or restricted land for a substantial period of time;
except that, if there is evidence that the testator adequately provided for the surviving spouse and any minor children by a transfer of funds or property outside of the will, this clause shall not apply.
(B) Children
(i) In general
(ii) Adopted heirs
(iii) Adopted-out children(I) In general(II) Eligible heir pursuant to other Federal law or tribal law
(3) Divorce
(A) Surviving spouse
(i) In general
(ii) Separation
(iii) No effect on adjudications
(B) Effect of subsequent divorce on a will or devise
(i) In general
(ii) Property
(iii) Provisions of wills
(4) After-born heirs
(5) Advancements of trust personalty during lifetime; effect on distribution of estate
(A) The trust personalty of a decedent who dies intestate as to all or a portion of his or her estate, given during the decedent’s lifetime to a person eligible to be an heir of the decedent under subsection (b)(2)(B), shall be treated as an advancement against the heir’s inheritance, but only if the decedent declared in a contemporaneous writing, or the heir acknowledged in writing, that the gift is an advancement or is to be taken into account in computing the division and distribution of the decedent’s intestate estate.
(B) For the purposes of this section, trust personalty advanced during the decedent’s lifetime is valued as of the time the heir came into possession or enjoyment of the property or as of the time of the decedent’s death, whichever occurs first.
(C) If the recipient of the trust personalty predeceases the decedent, the property shall not be treated as an advancement or taken into account in computing the division and distribution of the decedent’s intestate estate unless the decedent’s contemporaneous writing provides otherwise.
(6) Heirs related to decedent through 2 lines; single share
(7) Notice
(A) In general
(B) Combined notices
(8) Renunciation or disclaimer of interests
(A) In general
(B) Eligible recipients of renounced or disclaimed interests; notice to recipients
(i) Interests in landA trust or restricted interest in land may be renounced or disclaimed only in favor of—(I) an eligible heir;(II) any person who would have been eligible to be a devisee of the interest in question pursuant to subsection (b)(1)(A) (but only in cases where the renouncing person is a devisee of the interest under a valid will); or(III) the Indian tribe with jurisdiction over the interest in question;
and the interest so renounced shall pass to its recipient in trust or restricted status.
(ii) Trust personalty
(iii) Unauthorized renunciations and disclaimers
(C) Acceptance of interest
(D) Rule of construction
(9) Consolidation agreements
(A) In general
(B) Effective
(C) Effect on purchase option at probate
(k) Notification to landownersAfter receiving a written request by any owner of a trust or restricted interest in land, the Secretary shall provide to such landowner the following information with respect to each tract of trust or restricted land in which the landowner has an interest:
(1) The location of the tract of land involved.
(2) The identity of each other co-owner of interests in the parcel of land.
(3) The percentage of ownership of each owner of an interest in the tract.
(l) Pilot project for the management of trust assets of Indian families and relatives
(1) Development pilot projectThe Secretary shall consult with tribes, individual landowner organizations, Indian advocacy organizations, and other interested parties to—
(A) develop a pilot project for the creation of legal entities such as private or family trusts, partnerships corporations, or other organizations to improve, facilitate, and assist in the efficient management of interests in trust or restricted lands or funds owned by Indian family members and relatives; and
(B) develop proposed rules, regulations, and guidelines to implement the pilot project, including—
(i) the criteria for establishing such legal entities;
(ii) reporting and other requirements that the Secretary determines to be appropriate for administering such entities; and
(iii) provisions for suspending or revoking the authority of an entity to engage in activities relating to the management of trust or restricted assets under the pilot project in order to protect the interests of the beneficial owners of such assets.
(2) Primary purposes; limitation; approval of transactions; payments by Secretary
(A) Purposes
(B) Limitation
(C) Secretarial approval of transactions
(D) Payments
(3) Limitations on pilot project
(A) Number of organizations
(B) Regulations required
(4) Report to CongressPrior to the expiration of the pilot project provided for under this subsection, the Secretary shall submit a report to Congress stating—
(A) a description of the Secretary’s consultation with Indian tribes, individual landowner associations, Indian advocacy organizations, and other parties consulted with regarding the development of rules and regulations for the creation and management of interests in trust and restricted lands under the pilot project;
(B) the feasibility of accurately monitoring the performance of legal entities such as those involved in the pilot project, and the effectiveness of such entities as mechanisms to manage and protect trust assets;
(C) the impact that the use of entities such as those in the pilot project may have with respect to the accomplishment of the goals of this chapter; and
(D) any recommendations that the Secretary may have regarding whether to adopt a permanent program as a management and consolidation measure for interests in trust or restricted lands.
(m) Notice to heirsPrior to holding a hearing to determine the heirs to trust or restricted property, or making a decision determining such heirs, the Secretary shall seek to provide actual written notice of the proceedings to all heirs. Such efforts shall include—
(1) a search of publicly available records and Federal records, including telephone and address directories and including electronic search services or directories;
(2) an inquiry with family members and co-heirs of the property;
(3) an inquiry with the tribal government of which the owner is a member, and the tribal government with jurisdiction over the property, if any; and
(4) if the property is of a value greater than $2,000, engaging the services of an independent firm to conduct a missing persons search.
(n) Missing heirs
(1) For purposes of this subsection and subsection (m), an heir may be presumed missing if—
(A) such heir’s whereabouts remain unknown 60 days after completion of notice efforts under subsection (m); and
(B) in the proceeding to determine a decedent’s heirs, the Secretary finds that the heir has had no contact with other heirs of the decedent, if any, or with the Department relating to trust or restricted land or other trust assets at any time during the 6-year period preceding the hearing to determine heirs.
(2) Before the date for declaring an heir missing, any person may request an extension of time to locate such heir. The Secretary shall grant a reasonable extension of time for good cause.
(3) An heir shall be declared missing only after a review of the efforts made in the heirship proceeding and a finding has been made that this subsection has been complied with.
(4) An heir determined to be missing pursuant to this subsection shall be deemed to have predeceased the decedent for purposes of descent and devise of trust or restricted land and trust personalty within that decedent’s estate.
(o) Purchase option at probate
(1) In general
(2) Sale of interest at fair market valueSubject to paragraph (3), the Secretary is authorized to sell trust or restricted interests in land subject to this subsection, including the interest that a surviving spouse would otherwise receive under subparagraph (A) or (D) of subsection (a)(2), at no less than fair market value, as determined in accordance with the provisions of this chapter, to any of the following eligible purchasers:
(A) Any other eligible heir taking an interest in the same parcel of land by intestate succession or the decedent’s other devisees of interests in the same parcel who are eligible to receive a devise under subsection (b)(1)(A).
(B) All persons who own undivided trust or restricted interests in the same parcel of land involved in the probate proceeding.
(C) The Indian tribe with jurisdiction over the interest, or the Secretary on behalf of such Indian tribe.
(3) Request to purchase; consent requirements; multiple requests to purchase
(A) In generalNo sale of an interest in probate shall occur under this subsection unless—
(i) an eligible purchaser described in paragraph (2) submits a written request to purchase prior to the distribution of the interest to heirs or devisees of the decedent and in accordance with any regulations of the Secretary; and
(ii) except as provided in paragraph (5), the heirs or devisees of such interest, and the decedent’s surviving spouse, if any, receiving a life estate under subparagraph (A) or (D) of subsection (a)(2) consent to the sale.
(B) Multiple requests to purchase
(4) Appraisal and noticePrior to the sale of an interest pursuant to this subsection, the Secretary shall—
(A) appraise the interest at its fair market value in accordance with this chapter; and
(B) provide eligible heirs, other devisees, and the Indian tribe with jurisdiction over the interest with written notice, sent by first class mail, that the interest is available for purchase in accordance with this subsection.
(5) Small undivided interests in Indian lands
(A) In generalSubject to subparagraph (B), the consent of a person who is an heir or surviving spouse otherwise required under paragraph (3)(A)(ii) shall not be required for the sale of an interest at probate under this subsection if—
(i) the interest is passing by intestate succession;
(ii) prior to the sale the Secretary determines in the probate proceeding that, at the time of death of the applicable decedent, the interest of the decedent in the land represented less than 5 percent of the entire undivided ownership of the parcel of land as evidenced by the Secretary’s records as of the time the determination is made; and
(iii)(I) the Secretary is purchasing the interest under the program authorized under section 2212(a)(1) of this title; or(II) after receiving a notice under paragraph (4)(B), the Indian tribe with jurisdiction over the interest is proposing to purchase the interest from an heir or surviving spouse who is not residing on the property in accordance with clause (i), and who is not a member, and is not eligible to become a member, of that Indian tribe.
(B) Exception
(6) Distribution of proceeds
(A) In general
(B) Holding in trustProceeds described in subparagraph (A) shall be deposited and held in an account as trust personalty if the interest sold would otherwise pass to—
(i) the heir, by intestate succession under subsection (a); or
(ii) the devisee in trust or restricted status under subsection (b)(1).
(Pub. L. 97–459, title II, § 207, as added Pub. L. 106–462, title I, § 103(4), Nov. 7, 2000, 114 Stat. 1995; amended Pub. L. 108–374, §§ 3, 6(a)(2), (4), (e), Oct. 27, 2004, 118 Stat. 1774, 1797, 1800, 1805; Pub. L. 109–157, § 4, Dec. 30, 2005, 119 Stat. 2950; Pub. L. 109–221, title V, § 501(a), May 12, 2006, 120 Stat. 343; Pub. L. 110–453, title II, § 207(c), Dec. 2, 2008, 122 Stat. 5030.)
§ 2207. Full faith and credit to tribal actions under tribal ordinances limiting descent and distribution of trust or restricted or controlled lands
The Secretary in carrying out his responsibility to regulate the descent and distribution of trust lands under section 372 of this title, and other laws, shall give full faith and credit to any tribal actions taken pursuant to subsections (a) and (b) of section 2205 of this title, which provision shall apply only to estates of decedent’s whose deaths occur on or after the effective date of tribal ordinances adopted pursuant to this chapter.
(Pub. L. 97–459, title II, § 208, Jan. 12, 1983, 96 Stat. 2519; Pub. L. 106–462, title I, § 103(5), Nov. 7, 2000, 114 Stat. 1999.)
§ 2208. Conveyancing authority upon sale or exchange of tribal lands; removal of trust status of individually owned lands
The Secretary shall have the authority to issue deeds, patents, or such other instruments of conveyance needed to effectuate a sale or exchange of tribal lands made pursuant to the terms of this chapter and to remove, at the request of an Indian owner, the trust status of individually held lands or interests therein, where authorized by law.
(Pub. L. 97–459, title II, § 209, Jan. 12, 1983, 96 Stat. 2519.)
§ 2209. Trusteeship title of United States for any Indian or Indian tribe
Title to any land acquired under this chapter by any Indian or Indian tribe shall be taken in trust by the United States for that Indian or Indian tribe.
(Pub. L. 97–459, title II, § 210, Jan. 12, 1983, 96 Stat. 2519.)
§ 2210. Tax exemption
All lands or interests in land acquired by the United States for an Indian or Indian tribe under authority of this chapter shall be exempt from Federal, State and local taxation.
(Pub. L. 97–459, title II, § 211, Jan. 12, 1983, 96 Stat. 2519.)
§ 2211. Governing body of tribe; construction of chapter as not vesting with authority not authorized by tribal constitution or by-laws
Nothing in this chapter shall be construed as vesting the governing body of an Indian tribe with any authority which is not authorized by the constitution and by-laws or other organizational document of such tribe.
(Pub. L. 97–459, title II, § 212, as added Pub. L. 98–608, § 1(5), Oct. 30, 1984, 98 Stat. 3173.)
§ 2212. Fractional interest acquisition program
(a) Acquisition by Secretary
(1) In general
(2) Authority of Secretary
(3) Interests held in trust
(b) RequirementsIn implementing subsection (a), the Secretary—
(1) shall promote the policies provided for in section 102 of the Indian Land Consolidation Act Amendments of 2000;
(2) may give priority to the acquisition of fractional interests representing 2 percent or less of a parcel of trust or restricted land, especially those interests that would have escheated to a tribe but for the Supreme Court’s decision in Babbitt v. Youpee (117 S 1
1 So in original. Probably should be followed by a period.
Ct. 727 (1997));(3) to the extent practicable—
(A) shall consult with the tribal government that exercises jurisdiction over the land involved in determining which tracts to acquire on a reservation;
(B) shall coordinate the acquisition activities with the acquisition program of the tribal government that exercises jurisdiction over the land involved, including a tribal land consolidation plan approved pursuant to section 2203 of this title; and
(C) may enter into agreements (such agreements will not be subject to the provisions of the Indian Self-Determination and Education Assistance Act of 1974 [25 U.S.C. 5301 et seq.]) with the tribal government that exercises jurisdiction over the land involved or a subordinate entity of the tribal government to carry out some or all of the Secretary’s land acquisition program; and
(4) shall minimize the administrative costs associated with the land acquisition program through the use of policies and procedures designed to accommodate the voluntary sale of interests under this section, notwithstanding the existence of any otherwise applicable policy, procedure, or regulation, through the elimination of duplicate—
(A) conveyance documents;
(B) administrative proceedings; and
(C) transactions.
(c) Sale of interest to Indian landowners
(1) Conveyance at request
(A) In generalAt the request of any Indian who owns an undivided interest in a parcel of trust or restricted land, the Secretary shall convey an interest in such parcel acquired under this section to the Indian landowner—
(i) on payment by the Indian landowner of the amount paid for the interest by the Secretary; or
(ii) if—(I) the Indian referred to in this subparagraph provides assurances that the purchase price will be paid by pledging revenue from any source, including trust resources; and(II) the Secretary determines that the purchase price will be paid in a timely and efficient manner.
(B) Limitation
(2) Multiple owners
(3) Limitation
(d) Authorization of appropriations
(Pub. L. 97–459, title II, § 213, as added Pub. L. 106–462, title I, § 103(6), Nov. 7, 2000, 114 Stat. 1999; amended Pub. L. 108–374, § 6(a)(5), Oct. 27, 2004, 118 Stat. 1800; Pub. L. 109–157, § 5, Dec. 30, 2005, 119 Stat. 2952; Pub. L. 110–453, title II, § 207(d), Dec. 2, 2008, 122 Stat. 5033.)
§ 2213. Administration of acquired fractional interests; disposition of proceeds
(a) In general
(b) Application of revenue from acquired interests to land consolidation program
(1) In general
(2) Requirements
(A) In general
Until the Secretary removes a lien from an interest in land under paragraph (1)—
(i) any lease, resource sale contract, right-of-way, or other document evidencing a transaction affecting the interest shall contain a clause providing that all revenue derived from the interest shall be paid to the Secretary; and
(ii) any revenue derived from any interest acquired by the Secretary in accordance with section 2212 of this title shall be deposited in the fund created under section 2215 of this title.
(B) Approval of transactions
(3) Removal of liens after findings
The Secretary may remove a lien referred to in paragraph (1) if the Secretary makes a finding that—
(A) the costs of administering the interest from which revenue accrues under the lien will equal or exceed the projected revenues for the parcel of land involved;
(B) in the discretion of the Secretary, it will take an unreasonable period of time for the parcel of land to generate revenue that equals the purchase price paid for the interest; or
(C) a subsequent decrease in the value of land or commodities associated with the parcel of land make it likely that the interest will be unable to generate revenue that equals the purchase price paid for the interest in a reasonable time.
(4) Removal of liens upon payment into the acquisition fund
(5) Other removal of liens
(c) Tribe not treated as party to lease; no effect on tribal sovereignty, immunity
(1) In general
(2) Application of lease
(Pub. L. 97–459, title II, § 214, as added Pub. L. 106–462, title I, § 103(6), Nov. 7, 2000, 114 Stat. 2000; amended Pub. L. 108–374, § 6(a)(6), Oct. 27, 2004, 118 Stat. 1801.)
§ 2214. Establishing fair market value
For purposes of this chapter, the Secretary may develop a system for establishing the fair market value of various types of lands and improvements. Such a system may include determinations of fair market value based on appropriate geographic units as determined by the Secretary. Such a system may govern the amounts offered for the purchase of interests in trust or restricted land under this chapter.
(Pub. L. 97–459, title II, § 215, as added Pub. L. 106–462, title I, § 103(6), Nov. 7, 2000, 114 Stat. 2002; amended Pub. L. 108–374, § 6(a)(7), Oct. 27, 2004, 118 Stat. 1802; Pub. L. 109–157, § 6, Dec. 30, 2005, 119 Stat. 2952.)
§ 2215. Acquisition Fund
(a) In general
The Secretary shall establish an Acquisition Fund to—
(1) disburse appropriations authorized to accomplish the purposes of section 2212 of this title; and
(2) collect all revenues received from the lease, permit, or sale of resources from interests acquired under section 2212 of this title or paid by Indian landowners under section 2212 of this title.
(b) Deposits; use
(1) In general
All proceeds from leases, permits, or resource sales derived from an interest in trust or restricted lands described in subsection (a)(2) shall—
(A) be deposited in the Acquisition Fund;
(B) as specified in advance in appropriations Acts, be available for the purpose of acquiring additional fractional interests in trust or restricted lands; and
(C) be used to acquire undivided interests on the reservation from which the income was derived.
(2) Use of funds
(Pub. L. 97–459, title II, § 216, as added Pub. L. 106–462, title I, § 103(6), Nov. 7, 2000, 114 Stat. 2002; amended Pub. L. 108–374, § 6(a)(8), Oct. 27, 2004, 118 Stat. 1802.)
§ 2216. Trust and restricted land transactions
(a) Policy
It is the policy of the United States to encourage and assist the consolidation of land ownership through transactions—
(1) involving individual Indians;
(2) between Indians and the tribal government that exercises jurisdiction over the land; or
(3) between individuals who own an interest in trust and restricted land who wish to convey that interest to an Indian or the tribal government that exercises jurisdiction over the parcel of land involved;
in a manner consistent with the policy of maintaining the trust status of allotted lands. Nothing in this section shall be construed to apply to or to authorize the sale of trust or restricted lands to a person who is not an Indian.
(b) Sales, exchanges and gift deeds between Indians and between Indians and Indian tribes
(1) In general
(A) Estimate of value
Notwithstanding any other provision of law and only after the Indian selling, exchanging, or conveying by gift deed for no or nominal consideration an interest in land, has been provided with an estimate of the value of the interest of the Indian pursuant to this section—
(i) the sale or exchange or conveyance of an interest in trust or restricted land may be made for an amount that is less than the fair market value of that interest; and
(ii) the approval of a transaction that is in compliance with this section shall not constitute a breach of trust by the Secretary.
(B) Waiver of requirement
The requirement for an estimate of value under subparagraph (A) may be waived in writing by an owner of a trust or restricted interest in land either selling, exchanging, or conveying by gift deed for no or nominal consideration such interest—
(i) to an Indian person who is the owner’s spouse, brother, sister, lineal ancestor, lineal descendant, or collateral heir; or
(ii) to an Indian co-owner or to the tribe with jurisdiction over the subject parcel of land, where the grantor owns a fractional interest that represents 5 percent or less of the parcel.
(2) Limitation
(c) Acquisition of interest by Secretary
(d) Status of lands
(e) Land ownership information
Notwithstanding any other provision of law, the names and mailing addresses of the owners of any interest in trust or restricted lands, and information on the location of the parcel and the percentage of undivided interest owned by each individual shall, upon written request, be made available to—
(1) other owners of interests in trust or restricted lands within the same reservation;
(2) the tribe that exercises jurisdiction over the land where the parcel is located or any person who is eligible for membership in that tribe; and
(3) any person that is leasing, using, or consolidating, or is applying to lease, use, or consolidate, such trust or restricted land or the interest in trust or restricted lands.
(f) Purchase of land by Indian tribe
(1) In general
Except as provided in paragraph (2), before the Secretary approves an application to terminate the trust status or remove the restrictions on alienation from a parcel of, or interest in, trust or restricted land, the Indian tribe with jurisdiction over the parcel shall have the opportunity—
(A) to match any offer contained in the application; or
(B) in a case in which there is no purchase price offered, to acquire the interest in the parcel by paying the fair market value of the interest.
(2) Exception for family farms
(A) In general
(B) Applicability of other provision
(Pub. L. 97–459, title II, § 217, as added Pub. L. 106–462, title I, § 103(6), Nov. 7, 2000, 114 Stat. 2002; amended Pub. L. 108–374, § 6(a)(9), Oct. 27, 2004, 118 Stat. 1803; Pub. L. 109–157, § 7, Dec. 30, 2005, 119 Stat. 2952.)
§ 2217. Reports to Congress
(a) In general
Prior to expiration of the authority provided for in section 2212(a)(2)(A) of this title, the Secretary, after consultation with Indian tribes and other interested parties, shall submit to the Committee on Indian Affairs and the Committee on Energy and Natural Resources of the Senate and the Committee on Resources of the House of Representatives a report that indicates, for the period covered by the report—
(1) the number of fractional interests in trust or restricted lands acquired; and
(2) the impact of the resulting reduction in the number of such fractional interests on the financial and realty recordkeeping systems of the Bureau of Indian Affairs.
(b) Report
(Pub. L. 97–459, title II, § 218, as added Pub. L. 106–462, title I, § 103(6), Nov. 7, 2000, 114 Stat. 2004.)
§ 2218. Approval of leases, rights-of-way, and sales of natural resources
(a) Approval by the Secretary
(1) In general
Notwithstanding any other provision of law, the Secretary may approve any lease or agreement that affects individually owned allotted land or any other land held in trust or restricted status by the Secretary on behalf of an Indian, if—
(A) the owners of not less than the applicable percentage (determined under subsection (b)) of the undivided interest in the allotted land that is covered by the lease or agreement consent in writing to the lease or agreement; and
(B) the Secretary determines that approving the lease or agreement is in the best interest of the owners of the undivided interest in the allotted land.
(2) Rule of construction
(3) Definition
(b) Applicable percentage
(1) Percentage interest
The applicable percentage referred to in subsection (a)(1) shall be determined as follows:
(A) If there are 5 or fewer owners of the undivided interest in the allotted land, the applicable percentage shall be 90 percent.
(B) If there are more than 5 such owners, but fewer than 11 such owners, the applicable percentage shall be 80 percent.
(C) If there are more than 10 such owners, but fewer than 20 such owners, the applicable percentage shall be 60 percent.
(D) If there are 20 or more such owners, the applicable percentage shall be a majority of the interests in the allotted land.
(2) Determination of owners
(A) In general
(B) Rule of construction
(c) Authority of Secretary to sign lease or agreement on behalf of certain owners
The Secretary may give written consent to a lease or agreement under subsection (a)—
(1) on behalf of the individual Indian owner if the owner is deceased and the heirs to, or devisees of, the interest of the deceased owner have not been determined; or
(2) on behalf of any heir or devisee referred to in paragraph (1) if the heir or devisee has been determined but cannot be located 1
(d) Effect of approval
(1) Application to all parties
(A) In general
(B) Description of parties
The parties referred to in subparagraph (A) are—
(i) the owners of the undivided interest in the allotted land covered under the lease or agreement referred to in such subparagraph; and
(ii) all other parties to the lease or agreement.
(2) Tribe not treated as party to lease; no effect on tribal sovereignty, immunity
(A) In general
(B) Application of lease
(e) Distribution of proceeds
(1) In general
(2) Determination of amounts distributed
(f) Rule of construction
(g) Other laws
(Pub. L. 97–459, title II, § 219, as added Pub. L. 106–462, title I, § 103(6), Nov. 7, 2000, 114 Stat. 2004; amended Pub. L. 108–374, § 6(a)(10), (11), Oct. 27, 2004, 118 Stat. 1804.)
§ 2219. Application to Alaska
(a) Findings
Congress finds that—
(1) numerous academic and governmental organizations have studied the nature and extent of fractionated ownership of Indian land outside of Alaska and have proposed solutions to this problem; and
(2) despite these studies, there has not been a comparable effort to analyze the problem, if any, of fractionated ownership in Alaska.
(b) Application of chapter to Alaska
(c) Rule of construction
(Pub. L. 97–459, title II, § 220, as added Pub. L. 106–462, title I, § 103(6), Nov. 7, 2000, 114 Stat. 2006.)
§ 2220. Owner-managed interests
(a) Purpose
(b) Mineral interests
(c) Owner management
(1) In general
(2) Rule of construction
(d) Approval of applications for owner management
(1) In general
(2) Commencement of owner-managed status
(e) Validity of leasesNo lease of trust or restricted interests in a parcel of land that is owner-managed under this section shall be valid or enforceable against the owners of such interests, or against the land, the interest or the United States, unless such lease—
(1) is consistent with, and entered into in accordance with, the requirements of this section; or
(2) has been approved by the Secretary in accordance with other Federal laws applicable to the leasing of trust or restricted land.
(f) Lease revenues
(g) Jurisdiction
(1) Jurisdiction unaffected by status
(2) Persons using land
(h) Continuation of owner-managed status; revocation
(1) In general
(2) Revocation
(3) Effect of revocation
(i) Defined terms
(1) For purposes of subsection (d)(1), the term “qualified applicant” means—
(A) a person over the age of 18 who owns a trust or restricted interest in a parcel of land; and
(B) the parent or legal guardian of a minor or incompetent person who owns a trust or restricted interest in a parcel of land.
(2) For purposes of this section, the term “owner-managed status” means, with respect to a trust or restricted interest, that—
(A) the interest is a trust or restricted interest in a parcel of land for which applications covering all trust or restricted interests in such parcel have been submitted to and approved by the Secretary pursuant to subsection (d);
(B) the interest may be leased without approval of the Secretary pursuant to, and in a manner that is consistent with, the requirements of this section; and
(C) no revocation has occurred under subsection (h)(2).
(j) Secretarial approval of other transactions
(k) Effect of section
(Pub. L. 97–459, title II, § 221, as added Pub. L. 108–374, § 5, Oct. 27, 2004, 118 Stat. 1795; amended Pub. L. 110–453, title II, § 207(e), Dec. 2, 2008, 122 Stat. 5033.)
§ 2221. Annual notice and filing; current whereabouts of interest owners
On at least an annual basis, the Secretary shall include along with other regular reports to owners of trust or restricted interests in land and individual Indian money account owners a change of name and address form by means of which the owner may confirm or update the owner’s name and address. The change of name and address form shall include a section in which the owner may confirm and update the owner’s name and address.
(Pub. L. 97–459, title II, § 222, as added Pub. L. 108–374, § 7, Oct. 27, 2004, 118 Stat. 1809.)