[Senate Report 110-504]
[From the U.S. Government Publishing Office]
Calendar No. 1082
110th Congress Report
2d Session SENATE 110-504
======================================================================
AMENDING CERTAIN LAWS RELATING TO NATIVE AMERICANS, AND FOR OTHER
PURPOSES
_______
September 25 (legislative day, September 17), 2008.--Ordered to be
printed
_______
Mr. Dorgan, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany H.R. 5680]
The Committee on Indian Affairs, to which was referred the
bill (H.R. 5680) to amend certain laws relating to Native
Americans, and for other purposes, having considered the same,
reports favorably thereon with an amendment and recommends that
the bill do pass.
Purpose
The purpose of H.R. 5680, as ordered to be reported, is to
amend certain laws relating to Native Americans, and for other
purposes.
Background and Need for Legislation
H.R. 5680, as ordered to be reported, is comprised of nine
distinct measures that seek to resolve issues affecting certain
Native Americans and Alaska Natives.
COLORADO RIVER INDIAN TRIBES
Section 2 provides that the Secretary may make, subject to
any subsequent appropriations acts, an annual disbursement of
no less than $200,000 and not to exceed $350,000 to the
Colorado River Indian Tribes. The Tribes are required to use
funds disbursed under this section to fund an Office of the
Colorado River Indian Tribes Reservation Energy Development.
The Bureau of Indian Affairs (BIA) currently operates a
hydroelectric facility on the Tribes' Reservation. The Tribes
would like to assume some of the oversight, management, and
administrative functions of the administration of the
hydroelectric facility and related infrastructure. The Tribes
anticipate that any expenditures under this bill would be used
to establish an Office of the Colorado River Indian Tribes
Reservation Energy Development that could provide oversight of
the hydroelectric facility on the Reservation. The Tribes also
anticipate that any expenditures under this bill could be
offset by the cost savings of eliminating similar oversight
that has until now been performed by the BIA.
GILA RIVER INDIAN COMMUNITY CONTRACTS
In 2005, Congress enacted language to the leasing
provisions of 25 U.S.C. Sec. 415(f) on behalf of the Gila River
Indian Community which authorized the Community to include
binding arbitration clauses in any contract, including a lease,
affecting land within the Gila River Indian Community
Reservation. The Gila River Indian Community has adopted
standard provisions in its commercial agreements which provide
for arbitration should any dispute arise relating thereto.
These provisions typically provide that the agreement to
arbitrate may be enforced in either Federal or Tribal Court. In
addition to the existing authority for ``leases,'' this
legislation would make clear that the Community is authorized
to include binding arbitration clauses in ``construction
contracts.'' The Community believes that this legislation would
encourage business development on the Gila River Reservation by
providing prospective developers certainty and predictability
as they pertain to the mechanism for resolving potential
contractual disputes.
LAND AND INTERESTS OF SAULT STE. MARIE TRIBE OF CHIPPEWA INDIANS OF
MICHIGAN
In 1993, the Sault Ste. Marie Tribe purchased 16 acres of
private land in the city of St. Ignace, Michigan and operated a
motel on the property for several years. The Tribe donated this
fee simple land to the Mackinac Straits Hospital Authority
(MSH) for the purpose of constructing a new hospital in 2005.
The new hospital construction is backed by a $35 million loan
guarantee from the U.S. Department of Agriculture (USDA).
As part of the loan guarantee, the USDA requires title
insurance coverage. However, the title insurance company has
questions about the donation of lands held in fee simple by the
Tribe. USDA is holding up the loan guarantee until the title
insurance company agrees to the coverage. This provision will
address the title company's concern by making clear the Tribe's
right to convey the land for the hospital in 2005 was legal.
The title insurance can then be acquired and the USDA loan
guarantee secured.
The title insurance company's questions arise from the
Indian Non-Intercourse Act, 25 U.S.C. Sec. 177, which prohibits
the sale, grant or lease of land from any Indian nation without
the consent of the federal government. The title insurance
company will not issue coverage until either the Bureau of
Indian Affairs (BIA) commits in writing that they will not
enforce the Indian Non-Intercourse Act or Congress approves the
land transfer through legislation. Current Administration
policy is that the Non-Intercourse Act does not grant the
Secretary of the Interior the authority to approve private
(fee) land sales without direct authorization from Congress.
With this legislation Congress authorizes the land transaction.
MORONGO TRIBE LEASE EXTENSION
The Morongo Band of Mission Indians' Reservation is located
on approximately 36,000 acres of land, bisected by the east-
west I-10 corridor near Banning, California. In 2002, the tribe
began a program to develop an industrial park using parcels of
land south of Interstate 10. To date, the Band has been
successful in securing a long-term lease agreement with the
Nestle Company and one of its subsidiary units, Arrowhead
Water, for the production and bottling of water for personal
consumption. However, the Band believes it necessary to have
the ability to enter into lease agreements for periods longer
than their current authorized term of 25 years in order to
attract additional tenants and diversify their economy. The
Band believes that it must seek similar authority in order to
remain competitive.
COW CREEK BAND LEASING AUTHORITY
The Cow Creek Band has been actively investing in local
infrastructure and economic development with the goals of
diversifying their economy and assisting in shaping and
recreating the local economy. The Band is interested in
attracting outside businesses and capital to their under-
developed commercial and industrial areas near I-5 in
southwestern Oregon. However, during previous business
negotiations, the Band's currently authorized 25-year lease
term has been a limiting factor. Many businesses have been
reluctant to make large investments when there is no guarantee
that they could operate their business beyond 25 years. Most
other tribes located in Oregon have the authority to enter into
99-year leases, and the Band believes they are at a
disadvantage.
NEW SETTLEMENT COMMON STOCK ISSUED TO DESCENDANTS, LEFT-OUTS AND ELDERS
Pursuant to the Alaska Native Claims Settlement Act
(ANCSA), Alaska Natives born on or before December 18, 1971,
were enrolled to one of thirteen Regional Corporations as
shareholders, and to the village, urban and group corporations
in which they lived or to which they had an historical,
cultural, and familial tie (collectively ``Alaska Native
Corporations'').
In 1988, ANCSA was amended to allow Alaska Native
Corporations to authorize the issuance of shares of settlement
common stock, with or without consideration, to descendants of
the original shareholders born after December 18, 1971, missed
enrollees, and Elders.
Shares issued pursuant to this enabling authority can be
subjected to a variety of terms, conditions and restrictions as
may be specified in an amendment to the corporation's Article
of Incorporation or in a resolution approved by the board of
directors pursuant to authority expressly vested in the board
by the amendment. The amendment enacted in 1988 enumerated,
without limitation, a few such terms, conditions and
restrictions which might be considered in issuing such stock.
In response to requests from Alaska Native Corporations for
specific congressional sanction of two additional terms,
conditions and restrictions that can be placed in this stock,
this amendment to ANCSA expressly authorizes corporations to
limit or eliminate the voting rights of the shares and to
prohibit the transfer of these shares by inter vivos gift. This
provision is not in any way intended to limit the terms,
conditions and restrictions which have been or may in the
future be placed on these shares under the authority granted by
the 1988 amendments to the ANCSA.
This section was revised by the Manager's Amendment to
eliminate certain changes to ANCSA governing the transfer and
alienation of Settlement Common Stock which were determined to
be redundant.
ADMISSIONS POLICY
Section 8 codifies a December 5, 2006, en banc decision by
the United States Court of Appeals for the Ninth Circuit that a
private school can maintain its admissions policy. The school
provides all of its services to its students through a private
trust.
This section was added by the Manager's Amendment.
INDIAN LAND CONSOLIDATION ACT
The American Indian Probate Reform Act (AIPRA) was enacted
on October 27, 2004. AIPRA amended the Indian Land
Consolidation Act (ILCA) by creating a uniform probate code
applicable to individual Indian trust and restricted lands
subject to certain exceptions set forth in the Act.
One important goal of AIPRA was to assure that the interest
of an intestate decedent Indian in permanent improvements
attached to a tract of trust or restricted land that was also
in the estate of the decedent would descend to the same heir or
heirs who inherited the underlying trust or restricted land.
The approach under current law is to define the term ``land''
in the ILCA definition section (25 U.S.C. Sec. 2201) in such a
way that ``land'' includes permanent improvements for this
purpose. This approach has led to some uncertainty as to the
treatment of permanent improvements in the Probate Code and
calls for a more direct approach to dealing with this kind of
property.
Accordingly, section 9 of the bill would address this
matter of permanent improvements by providing that (1) for
intestate disposition, a decedent's interest in permanent
improvements attached to trust or restricted land that is
included in the decedent's estate descends to the same heir or
heirs who inherit the underlying land, and (2) for testate
disposition, establishing a presumption that a devise of trust
or restricted land in a will includes any interest of the
testator in permanent improvements attached to that land,
absent express language to the contrary in the will.
Section 9, among other things, would also: (1) clarify that
the 5% threshold applicable to non-consensual purchase of small
interests is measured against the decedent's interest in the
land immediately preceding death rather than the interest
descending to a particular heir; (2) simplify the purchase
option at probate and limit the eligible purchasers in non-
consensual probate purchases of very small interests to the
Secretary and, where the interest would be passing by intestate
succession to a non-member, the Indian tribe; and (3) clarify
that the ``Owner-Managed Interests'' section of ILCA (25 U.S.C.
2220) is applicable to sole owners as well as co-owners.
This section was added by the Manager's Amendment.
Summary of the Amendments
At its September 23, 2008 business meeting, the Committee
adopted a Managers Amendment to H.R. 5680. The Manager's
Amendment revises section 7 and adds sections 8 and 9. The
amendments are explained in the section above.
Section-by-Section Analysis of H.R. 5680 as Amended
Sec. 1. Table of contents
Section 1 lists the table of contents of the bill.
Sec. 2. Colorado River Indian Tribes
Section 2 allows the Secretary of the Interior to make an
annual disbursement to the Colorado River Indian Tribes,
subject to amounts provided in subsequent appropriations Acts.
Funds disbursed under this section shall be used to fund the
Office of the Colorado River Indian Tribes Reservation Energy
Development. In each year, the funds shall not be less than
$200,000 and not to exceed $350,000.
Sec. 3. Gila River Indian Community contracts
Section 3 clarifies that construction contracts are
included in those to which the Gila River Indian Community is
authorized to enter into agreements for binding arbitration.
Sec. 4. Land and interests of the Sault Ste. Marie Tribe of Chippewa
Indians of Michigan
Section 4 clarifies the right of the Sault Ste. Marie Tribe
of Chippewa Indians of Michigan to transfer land owned by the
Tribe in fee simple status.
Sec. 5. Morongo Band of Mission Indians lease extension
Section 5 amends the Indian Long-Term Leasing Act, 25
U.S.C. 415(a), to authorize the Morongo Band of Mission Indians
to lease lands held in trust for up to 50 years. Currently, the
Indian Long-Term Leasing Act authorizes tribes to enter into
25-year leases, with the option to renew for an additional 25
years.
Sec. 6. Cow Creek Band of Umpqua Tribe of Indians leasing authority
Section 6 amends the Indian Long-Term Leasing Act, 25
U.S.C. 415(a), to authorize the Cow Creek Band of Umpqua
Indians to lease lands held in trust for up to 99 years.
Currently, the Indian Long-Term Leasing Act authorizes tribes
to enter into 25-year leases, with the option to renew for an
additional 25 years.
Sec. 7. New settlement common stock issued to descendants, left-outs,
and elders
Section 7 would amend the Alaska Native Claims Settlement
Act to expressly authorize Alaska Native Corporations to limit
or eliminate the voting rights of settlement common stock
shares issued to descendants of the original shareholders born
after December 18, 1971, missed enrollees, and Elders and to
prohibit the transfer of these shares by inter vivos gift.
Sec. 8. Admissions policy
Section 8 codifies that a private school can maintain its
admission's policy as upheld by case number 04-15044 of the
United States Court of Appeals for the Ninth Circuit (December
5, 2006). The effective date of this section is December 5,
2006.
Sec. 9. Indian Land Consolidation Act
Section 9 would amend various provisions of the Indian Land
Consolidation Act (ILCA). Section 9(a) would amend the
definitions section of ILCA (25 U.S.C. 2201) by making
technical and clarifying changes to the definition of `trust or
restricted lands' and to the definition of `land' (insofar as
it pertains to permanent improvements).
Section 9(c) would amend the Indian Probate Code of ILCA
(25 U.S.C. 2206), by, among other things--
(1) providing for intestate and testamentary
treatment of permanent improvements attached to
individual Indian trust or restricted land under
section 207 of ILCA;
(2) providing a tribal ``opt-out'' of the current
rule in the Probate Code against devising Indian
Reorganization Act (IRA) reservation lands to non-
Indians by allowing the tribe to pass a resolution
requesting the Secretary of the Interior to follow the
rule otherwise applicable to non-IRA reservations
(which allows such devises);
(3) simplifying the process relating to the purchase
option at probate by allowing the heir or surviving
spouse to choose which of the eligible bidders may
purchase the interest, without holding an auction;
(4) clarifying that the 5% threshold applicable to
the non-consensual purchase of small interests during
probate is to be measured against the decedent's
interest in the land immediately before death as
opposed to the interest passing to a particular heir;
and
(5) limiting the eligible purchasers in non-
consensual probate purchases of very small interests to
the Secretary, and, where the interest would be passing
by intestate succession to a non-member, the Indian
tribe.
Section 9(e) would amend the ``Owner-Managed Interests''
section of ILCA (25 U.S.C. 2220) to clarify that that section
is applicable to sole owners in addition to co-owners.
Section 9(f) provides that (1) the amendments made to the
testamentary disposition section of ILCA by this bill will not
apply to any will that was executed before the date that is one
year after the date of enactment of this Act, and (2) the
amendments made to the small undivided interests section of
ILCA by this bill shall not apply to or affect any sale of such
interests that was completed before the date of enactment of
this bill.
Legislative History
H.R. 5680 was introduced by Representative Grijalva (D-AZ)
on April 2, 2008. The House Committee on Natural Resources held
a hearing on April 9, 2008. The Department of the Interior
testified at this hearing. A number of changes were made to the
bill in response to the Department's testimony.
On May 15, 2008, the House Committee on Natural Resources
ordered the bill reported by unanimous consent. On June 18,
2008, the House of Representatives passed the bill by a voice
vote.
On June 19, 2008, H.R. 5680 was received in the Senate and
referred to the Committee on Indian Affairs. On September 23,
2008, the Committee held an open business meeting to consider
H.R. 5680 as well as other legislation. A Managers Amendment to
H.R. 5680 was offered. The Committee approved H.R. 5680, as
amended, by voice vote.
Committee Recommendation and Tabulation of Vote
At an open business meeting held September 23, 2008, the
Committee on Indian Affairs, by a voice vote, adopted H.R.
5680, with an amendment and ordered the bill favorably reported
to the Senate, with the recommendation that the Senate do pass
H.R. 5680 as reported.
Cost and Budgetary Considerations
The cost estimate for H.R. 5680, as prepared by the
Congressional Budget Office (CBO), is set forth below.
CBO estimates that this bill will have no significant
impact on the federal budget. Passage of H.R. 5680 would
increase direct spending by roughly $300,000 annually but would
not affect revenues.
H.R. 5680--A bill to amend certain laws relating to Native Americans,
and for other purposes
H.R. 5680 would amend various laws concerning Native
Americans. CBO estimates that implementing this legislation
would have no significant impact on the federal budget.
Enacting H.R. 5680 would increase direct spending by roughly
$300,000 annually but would not affect revenues.
H.R. 5680 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Reform Mandates Act and
would impose no costs on state, local, or tribal governments.
The provisions would benefit several Indian tribes.
The bill would authorize the Secretary of the Interior to
make payments of between $200,000 and $350,000 annually to the
reservation of Colorado River Indian Tribes for a new local
energy department. The payments would be made from receipts
earned from the sale of electricity generated by the federally
owned Colorado River power system on that reservation.
Under current law, such receipts from electricity sales--an
estimated $10 million a year--may be used without further
appropriation to operate and maintain generating facilities,
transmission lines, and other infrastructure. Under the bill,
receipts collected in excess of amounts needed for those
purposes would be available, also without further
appropriation, for payments to the tribe. Assuming that
receipts will be available for the new energy department, CBO
estimates that the additional direct spending under the bill
would total around $300,000 a year.
Other sections of the bill would have no significant impact
on the federal budget. Those sections would:
Authorize the Secretary to take lands into
trust for the Miccosukee Tribe of Indians of Florida;
Allow certain tribes to lease lands held in
trust for more than 25-year terms; and
Permit the Sault Ste. Marie Tribe of
Chippewa Indians of Michigan to lease, transfer, or
convey, without the approval of the Secretary, any
interest in land not held in trust by the United
States.
The CBO staff contact for this estimate is Leigh Angres.
The estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Regulatory and Paperwork Impact Statement
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires that each report accompanying a bill evaluate
the regulatory paperwork impact that would be incurred in
implementing this legislation. The Committee has concluded that
enactment of H.R. 5680 will create only de minimis regulatory
or paperwork burdens.
Executive Communication
The Committee has not received an official communication
from the Administration of the bill as amended.
Changes in Existing Law
In compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, the Committee states that changes
in existing law made by the bill, as reported, are shown as
follows (existing law proposed to be omitted is enclosed in
black brackets, new matter is printed in italic, existing law
in which no change is proposed is shown in roman):
ACT OF AUGUST 9, 1955
AN ACT To authorize the leasing of restricted Indian lands for public,
religious, educational, recreational, residential, business, and other
purposes requiring the grant of long-term leases
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That (a)
any restricted Indian lands, whether tribally or individually
owned, may be leased by the Indian owners, with the approval of
the Secretary of the Interior, for public, religious,
educational, recreational, residential, or business purposes,
including the development or utilization of natural resources
in connection with operations under such leases, for grazing
purposes, and for those farming purposes which require the
making of a substantial investment in the improvement of the
land for the production of specialized crops as determined by
said Secretary. All leases so granted shall be for a term of
not to exceed twenty-five years, except leases of land located
outside the boundaries of Indian reservations in the State of
New Mexico, leases of land on the Agua Caliente (Palm Springs)
Reservation, the Dania Reservation, the Pueblo of Santa Ana
(with the exception of the lands known as the `Santa Ana Pueblo
Spanish Grant'), the reservation of the Confederated Tribes of
the Warm Springs Reservation of Oregon, and lands held in trust
for the Cow Creek Band of Umpqua Tribe of Indians, the Moapa
Indian reservation, the Swinomish Indian Reservation, the
Southern Ute Reservation, the Fort Mojave Reservation, the
reservation of the Confederated Tribes of the Umatilla Indian
Reservation, the Burns Paiute Reservation, the Kalispel Indian
Reservation, the pueblo of Cochiti, the pueblo of Pojoaque, the
pueblo of Tesuque, the pueblo of Zuni, the Hualapai
Reservation, the Spokane Reservation, the San Carlos Apache
Reservation, the Yavapai-Prescott Community Reservations, the
Pyramid Lake Reservation, the Gila River Reservation, the
Soboba Indian Reservation, the Viejas Indian Reservation, the
Tulalip Indian Reservation, the Navajo Reservation, the Cabazon
Indian Reservation, the Muckleshoot Indian Reservation and land
held in trust for the Muckleshoot Indian Tribe, the Mille Lacs
Reservation with respect to a lease between an entity
established by the Mille Lacs Band of Chippewa Indians and the
Minnesota Historical Society, leases of the lands comprising
the Moses Allotment Numbered 8 and the Moses Allotment Numbered
10, Chelan County, Washington, and lands held in trust for the
Las Vegas Paiute Tribe of Indians, and lands held in trust for
the Twenty-nine Palms Band of Luiseno Mission Indians, and
lands held in trust for the Reno Sparks Indian Colony, lands
held in trust for the Torres Martinez Desert Cahuilla Indians,
lands held in trust for the Guidiville Band of Pomo Indians of
the Guidiville Indian Rancheria, lands held in trust for the
Confederated Tribes of the Umatilla Indian Reservation, lands
held in trust for the Confederated Tribes of the Warm Springs
Reservation of Oregon, lands held in trust for the Cherokee
Nation of Oklahoma, lands held in trust for the Fallon Paiute
Shoshone Tribes, lands held in trust for the Pueblo of Santa
Clara, land held in trust for the Yurok Tribe, land held in
trust for the Hopland Band of Pomo Indians of the Hopland
Rancheria, lands held in trust for the Yurok Tribe, lands held
in trust for the Hopland Band of Pomo Indians of the Hopland
Rancheria, lands held in trust for the Confederated Tribes of
the Colville Reservation, lands held in trust for the Cahuilla
Band of Indians of California, lands held in trust for the
confederated Tribes of the Grand Ronde Community of Oregon, and
the lands held in trust for the Confederated Salish and
Kootenai Tribes of the Flathead Reservation, Montana, and
leases to the Devils Lake Sioux Tribe, or any organization of
such tribe, of land on the Devils Lake Sioux Reservation, which
may be for a term of not to exceed ninety-nine years, and
except leases of land held in trust for the Morongo Band of
Cahuilla Mission Indians of the Morongo Reservation,
California, which may be for a term not to exceed 50 years, and
except leases of land for grazing purposes which may be for a
term not to exceed ten years. Leases for public, religious,
educational, recreational, residential, or business purposes
with the consent of both parties may include provisions
authorizing their renewal for one additional term of not to
exceed twenty-five years, and all leases and renewals shall be
made under such terms and regulations as may be prescribed by
the Secretary of the Interior. Prior to approval of any lease
or extension of an existing lease pursuant to this section, the
Secretary of the Interior shall first satisfy himself that
adequate consideration has been given to the relationship
between the use of the leased lands and the use of neighboring
lands; the height, quality, and safety of any structures or
other facilities to be constructed on such lands; the
availability of police and fire protection and other services;
the availability of judicial forums for all criminal and civil
causes arising on the leased lands; and the effect on the
environment of the uses to which the leased lands will be
subject.
* * * * * * *
(f) A contract, including a [ lease, affecting ] lease or
construction contract, affecting land within the Gila River
Indian Community Reservation may contain a provision for the
binding arbitration of disputes arising out of such contract.
Such contracts shall be considered within the meaning of
`commerce' as defined and subject to the provisions of section
1 of title 9, United States Code. Any refusal to submit to
arbitration pursuant to a binding agreement for arbitration or
the exercise of any right conferred by title 9 to abide by the
outcome of arbitration pursuant to the provisions of chapter 1
of title 9, sections 1 through 14, United States Code, shall be
deemed to be a civil action arising under the Constitution,
laws or treaties of the United States within the meaning of
section 1331 of title 28, United States Code.
* * * * * * *
ALASKA NATIVE CLAIMS SETTLEMENT ACT
43 U.S.C. 1606
SEC. 7. REGIONAL CORPORATIONS.
* * * * * * *
(g)(1) Settlement Common Stock.--
(A) * * *
(B)(i) * * *
* * * * * * *
[(iii) The amendment authorized by clause (i) may
provide that Settlement Common Stock issued to a Native
pursuant to such amendment (or stock issued in exchange
for such Settlement Common Stock pursuant to subsection
(h)(3) or section 37(d)) shall be deemed canceled upon
the death of such Native. No compensation for this
cancellation shall be paid to the estate of the
deceased Native or to any person holding the stock.]
(iii) Conditions on certain stock--
(I) In general.--An amendment under clause
(i) may provide that Settlement Common Stock
issued to a Native pursuant to the amendment
(or stock issued in exchange for that
Settlement Common Stock pursuant to subsection
(h)(3) or section 29(c)(3)(D)) shall be subject
to 1 or more of the conditions described in
subclause (II).
(II) Conditions.--A condition referred to in
subclause (I) is a condition that--
(aa) the stock described in that
subclause shall be deemed to be
canceled on the death of the Native to
whom the stock is issued, and no
compensation for the cancellation shall
be paid to the estate of the deceased
Native or any person holding the stock;
(bb) the stock shall carry limited or
no voting rights; and
(cc) the stock shall not be
transferred by gift under subsection
(h)(1)(C)(iii).
* * * * * * *
INDIAN LAND CONSOLIDATION ACT
25 U.S.C. 2201
Section 202 of the Indian Land Consolidation Act is amended
as follows:
SEC. 2201. DEFINITIONS.
* * * * * * *
(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 [``trust
or restricted interest in land'' or](ii) ``trust or
restricted interest in land'' or ``trust or restricted
interest in a parcel of land'' means [an interest in
land, title to which] 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.
* * * * * * *
[(7) ``land'' means any real property, and includes
within its meaning for purposes of this chapter
improvements permanently affixed to real property;](7)
the term `land' means any real property;
25 U.S.C. 2204(c)(2)(D)(i)
Section 205(c)(2)(D)(i) of the Indian Land Consolidation
Act is amended as follows:
(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.
25 U.S.C. 2206
Section 207 of the Indian Land Consolidation Act is amended
as follows:
(a)(2)(D) Intestate Descent of Small Fractional Interests
in Land.--
(i) General rule.--Notwithstanding subparagraphs (A)
and (B), and subject to any applicable Federal law, any
trust or restricted interest in land in the decedent's
estate that is not disposed of by a valid will and
represents less than 5 percent of the entire undivided
ownership of the parcel of land of which such interest
is a part, as evidenced by the decedent's estate
inventory at the time of the heirship determination,
shall descend in accordance with clauses (ii) through
[(iv)](v). * * *
(iv) * * *
(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
[decedent] descent set forth in clause (iii).
The Secretary shall apply such rule to the
interest in distributing the decedent's estate,
but only if-- * * *
[(v) Rule of construction.--This subparagraph shall
not be construed to limit a person's right to devise
any trust or restricted interest by way of a valid will
in accordance with subsection (b) of this section.]
(v) Effect of Subparagraph.--Nothing in this
subparagraph limits the right of any person to devise
any trust or restricted interest pursuant to a valid
will in accordance with subsection (b). * * *
* * * * * * *
(a) Nontestamentary Disposition.--
* * * * * * *
(6) Intestate descent of permanent improvements.--
(A) Definition of covered permanent
improvement.--In 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 descent.--Except as otherwise
provided in a tribal probate code approved
under section 206 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 effect.--The 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.
* * * * * * *
(b)(2) Devise of Trust or Restricted Land as a Life Estate
or in Fee.--
(B) Indian reorganization act lands.--
[Any interest](i) In general._Subject
to clauses (ii) and (iii), any interest
in trust or restricted land that is
subject to section 464 of this title,
may be devised only in accordance
with--
[(i)](I) that section;
[(ii)](II) subparagraph
(A)(i); or
[(iii)](III) paragraph
(1)(A)[;].
(ii) Exception.--
(I) In general.--
Nothwithstanding clause (i), in
any case in which a resolution,
law or other duly adopted
enactment of the Indian tribe
with jurisdiction over the land
of which as interest described
in clause (i) is a part
requests the Secretary to apply
subparagraph (A)(ii) to devises
of trust or restricted land
under the jurisdiction of the
Indian tribe, the interest may
be devised in fee in accordance
with subparagraph (A)(ii).
(II) Effect.--Subclause (I)
shall apply with respect to a
devise of a trust or restricted
interest in land by any
decedent who dies on or after
the date on which the
applicable Indian tribe adopts
the resolution, law, or other
enactment described in
subclause (I), regardless of
the date on which the devise is
made.
(III) Notice of request.--An
Indian tribe shall provide to
the Secretary a copy of any
resolution, law, or other
enactment of the Indian tribe
that requests the Secretary to
apply subparagraph (A)(ii) to
devises of trust or restricted
land under the jurisdiction of
the Indian tribe.
[provided that nothing] (iii)
Effect._Except as provided in clause
(ii), nothing in this section or in
section 464 of this title, shall be
construed to authorize the devise of
any interest in trust or restricted
land that is subject to section 464 of
this title to any person as a fee
interest under subparagraph (A)(ii).
* * * * * * *
(h) Rules of Interpretation.--
(1) Construction that will passes all property.--
[A will](A) In general._A will shall be
construed to apply to all trust and restricted
land and trust personalty which the testator
owned at his death, including any such land or
personalty acquired after the execution of his
will.
(B) Permanent improvements.--Except as
otherwise expressly provided in the will, a
devise of a trust or restricted interest in a
parcel of land shall be presumed to include the
interest of the testator in any permanent
improvements attached to the parcel of land.
(C) Application and effect.--The 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.
* * * * * * *
(i)(4) Joint Tenants, Joint Owners, and Joint Obligees.--
* * * * * * *
(C) Notwithstanding any other provision of
this subsection, the decedent's trust or
restricted [interest land]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.
* * * * * * *
(j)(2)(A) Spouses.--
* * * * * * *
(ii) Exception.--Clause (i) shall not apply to a
trust or restricted [interest land]interest in land
where--
* * * * * * *
(k) Notification to Landowners.--After 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:
* * * * * * *
(o) Purchase Option at Probate.--
* * * * * * *
[(3) Request to purchase; auction; consent
requirements.--No sale](3) Request to purchase; consent
requirements; multiple requests to purchase.--
(A) In general._No sale of an interest in
probate shall occur under this subsection
unless--
[(A)](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
[(B)](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) of this
section consent to the sale.
[If the Secretary receives more than
1 request to purchase the same
interest, the Secretary shall sell the
interest by public auction or sealed
bid (as determined by the Secretary) at
not less than the appraised fair market
value to the eligible purchaser
submitting the highest bid.]
(B) Multiple requests to purchase.--Except
for interest purchased pursuant to paragraph
(5), if the Secretary receives a request with
respect to an interest from more than 1
eligible purchaser under paragraph (2), the
Secretary shall sell the interest to the
eligible purchaser that is selected by the
applicable heir, devisee, or surviving spouse.
(4) Appraisal and notice.--Prior 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[;
and].
[(C) if the Secretary receives more than 1
request to purchase the interest by a person
described in subparagraph (B), provide notice
of the manner (auction or sealed bid), time and
place of the sale, a description, and the
appraised fair market value, of the interest to
be sold--
(i) to the heirs or other devisees
and the Indian tribe with jurisdiction
over the interest, by first class mail;
and
(ii) to all other eligible
purchasers, by posting written notice
in at least 5 conspicuous places in the
vicinity of the place of hearing.]
(5) Small undivided interests in indian lands.--
(A) In general.--Subject to subparagraph (B),
the consent of a person who is an heir or
surviving spouse otherwise required under
[paragraph (3)(B)]paragraph (3)(A)(ii) shall
not be required for the [auction and] sale of
an interest at probate under this subsection
if--
(i) the interest is passing by
intestate succession; [and]
(ii) prior to the [auction]sale the
Secretary determines in the probate
proceeding that the [interest passing
to such heir represents], 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 213(a)(1); 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.--Notwithstanding subparagraph
(A), the consent of such heir or surviving
spouse shall be required for the sale at
probate of the [heir's interest] interest of
the heir or surviving spouse if, at the time of
the decedent's death, the heir or surviving
spouse was residing on the parcel of land of
which the interest to be sold was a part.
25 U.S.C. 2212(a)
Section 213(a) of the Indian Land Consolidation Act is
amended as follows:
(1) In general.--The Secretary may acquire, at the
discretion of the Secretary and with the consent of the
owner, or from an heir during probate in accordance
with [section 207(p)]section 207(o) of this title and
at fair market value, any fractional interest in trust
or restricted lands.
25 U.S.C. 2220
Section 221 of the Indian Land Consolidation Act is amended
as follows:
(a) Purpose.--The purpose of this section is to provide a
means for the owner or co-owners of trust or restricted
interests in a parcel of land to enter into surface leases of
such parcel for certain purposes without approval of the
Secretary.
* * * * * * *