-CITE- 25 USC CHAPTER 24 - INDIAN LAND CONSOLIDATION 01/02/2006 -EXPCITE- TITLE 25 - INDIANS CHAPTER 24 - INDIAN LAND CONSOLIDATION -HEAD- CHAPTER 24 - INDIAN LAND CONSOLIDATION -MISC1- Sec. 2201. Definitions. 2202. Other applicable provisions. 2203. Adoption of land consolidation plan with approval of Secretary. (a) Statement of purpose; sales or exchanges: terms and conditions. (b) Conveyancing requirement; specific findings for nonexecution. (c) Below market value conveyance of Cherokee Nation of Oklahoma homesites. 2204. Purchase of trust or restricted or controlled lands at no less than fair market value; requisite conditions. (a) Purchase of land. (b) Conditions applicable to purchase. (c) Partition of highly fractionated Indian lands. 2205. Tribal probate codes; acquisitions of fractional interests by tribes. (a) Tribal probate codes. (b) Secretarial approval. (c) Authority available to Indian tribes. (d) Use of proposed findings by tribal justice systems. 2206. Descent and distribution. (a) Nontestamentary disposition. (b) Testamentary disposition. (c) Joint tenancy; right of survivorship. (d) Descent of off-reservation lands. (e) Approval of agreements. (f) Estate planning assistance. (g) Applicable Federal law. (h) Rules of interpretation. (i) Heirship by killing. (j) General rules governing probate. (k) Notification to landowners. (l) Pilot project for the management of trust assets of Indian families and relatives. (m) Notice to heirs. (n) Missing heirs. (o) Purchase option at probate. 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. (a) Acquisition by Secretary. (b) Requirements. (c) Sale of interest to Indian landowners. (d) Authorization of appropriations. 2213. Administration of acquired fractional interests; disposition of proceeds. (a) In general. (b) Application of revenue from acquired interests to land consolidation program. (c) Tribe not treated as party to lease; no effect on tribal sovereignty, immunity. 2214. Establishing fair market value. 2215. Acquisition Fund. (a) In general. (b) Deposits; use. 2216. Trust and restricted land transactions. (a) Policy. (b) Sales, exchanges and gift deeds between Indians and between Indians and Indian tribes. (c) Acquisition of interest by Secretary. (d) Status of lands. (e) Land ownership information. (f) Purchase of land by Indian tribe. 2217. Reports to Congress. (a) In general. (b) Report. 2218. Approval of leases, rights-of-way, and sales of natural resources. (a) Approval by the Secretary. (b) Applicable percentage. (c) Authority of Secretary to sign lease or agreement on behalf of certain owners. (d) Effect of approval. (e) Distribution of proceeds. (f) Rule of construction. (g) Other laws. 2219. Application to Alaska. (a) Findings. (b) Application of chapter to Alaska. (c) Rule of construction. 2220. Owner-managed interests. (a) Purpose. (b) Mineral interests. (c) Owner management. (d) Approval of applications for owner management. (e) Validity of leases. (f) Lease revenues. (g) Jurisdiction. (h) Continuation of owner-managed status; revocation. (i) Defined terms. (j) Secretarial approval of other transactions. (k) Effect of section. 2221. Annual notice and filing; current whereabouts of interest owners. -End- -CITE- 25 USC Sec. 2201 01/02/2006 -EXPCITE- TITLE 25 - INDIANS CHAPTER 24 - INDIAN LAND CONSOLIDATION -HEAD- Sec. 2201. Definitions -STATUTE- For 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) 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.(!1) (3) "Secretary" means the Secretary of the Interior; (4) "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 "trust or restricted interest in a parcel of land" means an interest in land, title to which 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.(!1) (5) "heirs of the first or second degree" means parents, children, grandchildren, grandparents, brothers and sisters of a decedent.(!1) (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) "land" means any real property, and includes within its meaning for purposes of this chapter improvements permanently affixed to 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. -SOURCE- (Pub. L. 97-459, title II, Sec. 202, Jan. 12, 1983, 96 Stat. 2517; Pub. L. 106-462, title I, Sec. 103(1), Nov. 7, 2000, 114 Stat. 1992; Pub. L. 108-374, Sec. 6(b), Oct. 27, 2004, 118 Stat. 1804.) -REFTEXT- REFERENCES IN TEXT The Indian Reorganization Act, referred to in par. (2)(B), is act June 18, 1934, ch. 576, 48 Stat. 984, as amended, which is classified generally to subchapter V (Sec. 461 et seq.) of chapter 14 of this title. The term "Indian" is defined for purposes of this Act in section 479 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 461 of this title and Tables. This chapter, referred to in pars. (6) and (7), was in the original "this Act", which was translated as reading "this title", meaning title II of Pub. L. 97-459, to reflect the probable intent of Congress. -MISC1- AMENDMENTS 2004 - Par. (2). Pub. L. 108-374, Sec. 6(b)(1), added par. (2) and struck out former par. (2) which read as follows: " 'Indian' means any person who is a member of any Indian tribe or is eligible to become a member of any Indian tribe, or any person who has been found to meet the definition of 'Indian' under a provision of Federal law if the Secretary determines that using such law's definition of Indian is consistent with the purposes of this chapter;". Par. (4). Pub. L. 108-374, Sec. 6(b)(2), added par. (4) and struck out former par. (4) which read as follows: " 'trust or restricted lands' means lands, title to which is held by the United States in trust for an Indian or an Indian tribe or lands title to which is held by Indians or an Indian tribe subject to a restriction by the United States against alienation; and". Pars. (6) to (10). Pub. L. 108-374, Sec. 6(b)(3), added pars. (6) to (10). 2000 - Par. (1). Pub. L. 106-462, Sec. 103(1)(A), substituted "(1)'Indian tribe' or 'tribe' " for "(1) 'tribe' ". Par. (2). Pub. L. 106-462, Sec. 103(1)(B), added par. (2) and struck out former par. (2) which read as follows: " 'Indian' means any person who is a member of a tribe or any person who is recognized as an Indian by the Secretary of the Interior;". Par. (5). Pub. L. 106-462, Sec. 103(1)(C)-(E), added par. (5). NOTICE; EFFECTIVE DATE OF 2004 AMENDMENT Pub. L. 108-374, Sec. 8, Oct. 27, 2004, 118 Stat. 1809, provided that: "(a) Notice. - "(1) In general. - Not later than 180 days after the date of enactment of this Act [Oct. 27, 2004], the Secretary shall notify Indian tribes and owners of trust or restricted lands of the amendments made by this Act [see Short Title of 2004 Amendment note below]. "(2) Specifications. - The notice required under paragraph (1) shall be designed to inform Indian owners of trust or restricted land of - "(A) the effect of this Act and the amendments made by this Act, with emphasis on the effect of the provisions of this Act and the amendments made by this Act, on the testate disposition and intestate descent of their interests in trust or restricted land; "(B) estate planning options available to the owners, including any opportunities for receiving estate planning assistance or advice; "(C) the use of negotiated sales, gift deeds, land exchanges, and other transactions for consolidating the ownership of land; and "(D) a toll-free telephone number to be used for obtaining information regarding the provisions of this Act and any trust assets of such owners. "(3) Requirements. - The Secretary shall provide the notice required under paragraph (1) - "(A) by direct mail for those Indians with interests in trust and restricted lands for which the Secretary has an address for the interest holder; "(B) through the Federal Register; "(C) through local newspapers in areas with significant Indian populations, reservation newspapers, and newspapers that are directed at an Indian audience; and "(D) through any other means determined appropriate by the Secretary. "(4) Certification. - After providing notice under this subsection, the Secretary shall - "(A) certify that the requirements of this subsection have been met; and "(B) publish notice of that certification in the Federal Register. "(b) Effective Date. - Section 207 of the Indian Land Consolidation Act (25 U.S.C. 2206), except subsections (e) and (f) of that section, shall not apply to the estate of an individual who dies before the date that is 1 year after the date on which the Secretary makes the certification required under subsection (a)(4) [such certification made June 20, 2005, see 70 F.R. 37107]." SHORT TITLE OF 2005 AMENDMENT Pub. L. 109-157, Sec. 1, Dec. 30, 2005, 119 Stat. 2949, provided that: "This Act [amending sections 464, 2204 to 2206, 2212, 2214, and 2216 of this title, enacting provisions set out as a note under section 464 of this title, and amending provisions set out as a note under this section] may be cited as the 'Indian Land Probate Reform Technical Corrections Act of 2005'." SHORT TITLE OF 2004 AMENDMENT Pub. L. 108-374, Sec. 1, Oct. 27, 2004, 118 Stat. 1773, provided that: "This Act [enacting sections 2220 and 2221 of this title, amending this section and sections 348, 464, 2204 to 2206, 2212 to 2216, and 2218 of this title, and enacting provisions set out as notes under this section] may be cited as the 'American Indian Probate Reform Act of 2004'." SHORT TITLE OF 2000 AMENDMENT Pub. L. 106-462, Sec. 1, Nov. 7, 2000, 114 Stat. 1991, provided that: "This Act [enacting sections 2205, 2206, and 2212 to 2219 of this title, amending this section and sections 348, 372, 373, 464, 2204, and 2207 of this title, repealing sections 331 to 333, 2205, and 2206 of this title, and enacting provisions set out as notes under this section and sections 396 and 2206 of this title] may be cited as the 'Indian Land Consolidation Act Amendments of 2000'." SHORT TITLE OF 1991 AMENDMENT Pub. L. 102-238, Sec. 1, Dec. 17, 1991, 105 Stat. 1908, provided that: "This Act [amending sections 2203, 2703, and 2718 of this title, enacting provisions set out as a note under section 1437f of Title 42, The Public Health and Welfare, and repealing provisions set out as a note under section 1437f of Title 42] may be cited as the 'Technical Amendments to Various Indian Laws Act of 1991'." SHORT TITLE Section 201 of title II of Pub. L. 97-459 provided that: "This title [enacting this chapter] may be cited as the 'Indian Land Consolidation Act'." REGULATIONS Pub. L. 108-374, Sec. 10, Oct. 27, 2004, 118 Stat. 1810, provided that: "The Secretary is authorized to adopt such regulations as may be necessary to implement the provisions of this Act [see Short Title of 2004 Amendment note above]." SEVERABILITY Pub. L. 108-374, Sec. 9, Oct. 27, 2004, 118 Stat. 1810, as amended by Pub. L. 109-157, Sec. 8(a)(2), Dec. 30, 2005, 119 Stat. 2952, provided that: "If any provision of this Act [see Short Title of 2004 Amendment note above] or of any amendment made by this Act, or the application of any such provision to any person or circumstance, is held to be invalid for any reason, the remainder of this Act and of amendments made by this Act, and the application of the provisions and of the amendments made by this Act to any other person or circumstance shall not be affected by such holding, except that each of subclauses (II), (III), and (IV) of section 205(c)(2)(I)(i) of the Indian Land Consolidation Act (25 U.S.C. 2204(c)(2)(I)(i)) is deemed to be inseverable from the other 2, such that if any 1 of those 3 subclauses is held to be invalid for any reason, neither of the other 2 of such subclauses shall be given effect." CONGRESSIONAL FINDINGS Pub. L. 108-374, Sec. 2, Oct. 27, 2004, 118 Stat. 1773, provided that: "Congress finds that - "(1) the Act of February 8, 1887 (commonly known as the 'Indian General Allotment Act') (25 U.S.C. 331 et seq.), which authorized the allotment of Indian reservations, did not permit Indian allotment owners to provide for the testamentary disposition of the land that was allotted to them; "(2) that Act provided that allotments would descend according to State law of intestate succession based on the location of the allotment; "(3) the reliance of the Federal Government on the State law of intestate succession with respect to the descent of allotments has resulted in numerous problems affecting Indian tribes, members of Indian tribes, and the Federal Government, including - "(A) the increasingly fractionated ownership of trust and restricted land as that land is inherited by successive generations of owners as tenants in common; "(B) the application of different rules of intestate succession to each interest of a decedent in or to trust or restricted land if that land is located within the boundaries of more than 1 State, which application - "(i) makes probate planning unnecessarily difficult; and "(ii) impedes efforts to provide probate planning assistance or advice; "(C) the absence of a uniform general probate code for trust and restricted land, which makes it difficult for Indian tribes to work cooperatively to develop tribal probate codes; and "(D) the failure of Federal law to address or provide for many of the essential elements of general probate law, either directly or by reference, which - "(i) is unfair to the owners of trust and restricted land (and heirs and devisees of owners); and "(ii) makes probate planning more difficult; "(4) a uniform Federal probate code would likely - "(A) reduce the number of fractionated interests in trust or restricted land; "(B) facilitate efforts to provide probate planning assistance and advice and create incentives for owners of trust and restricted land to engage in estate planning; "(C) facilitate intertribal efforts to produce tribal probate codes in accordance with section 206 of the Indian Land Consolidation Act (25 U.S.C. 2205); and "(D) provide essential elements of general probate law that are not applicable on the date of enactment of this Act [Oct. 27, 2004] to interests in trust or restricted land; and "(5) the provisions of a uniform Federal probate code and other forth [sic] in this Act [see Short Title of 2004 Amendment note above] should operate to further the policy of the United States as stated in the Indian Land Consolidated Act Amendments of 2000, Public Law 106-462, [Sec.]102, November 7, 2000, 114 Stat. 1992 [set out as a note below]." Pub. L. 106-462, title I, Sec. 101, Nov. 7, 2000, 114 Stat. 1991, provided that: "Congress finds that - "(1) in the 1800's and early 1900's, the United States sought to assimilate Indian people into the surrounding non-Indian culture by allotting tribal lands to individual members of Indian tribes; "(2) as a result of the allotment Acts and related Federal policies, over 90,000,000 acres of land have passed from tribal ownership; "(3) many trust allotments were taken out of trust status, often without their owner's consent; "(4) without restrictions on alienation, allotment owners were subject to exploitation and their allotments were often sold or disposed of without any tangible or enduring benefit to their owners; "(5) the trust periods for trust allotments have been extended indefinitely; "(6) because of the inheritance provisions in the original treaties or allotment Acts, the ownership of many of the trust allotments that have remained in trust status has become fractionated into hundreds or thousands of undivided interests, many of which represent 2 percent or less of the total interests; "(7) Congress has authorized the acquisition of lands in trust for individual Indians, and many of those lands have also become fractionated by subsequent inheritance; "(8) the acquisitions referred to in paragraph (7) continue to be made; "(9) the fractional interests described in this section often provide little or no return to the beneficial owners of those interests and the administrative costs borne by the United States for those interests are inordinately high; "(10) in Babbitt v. Youpee (117 S[.] Ct. 727 (1997)), the United States Supreme Court found the application of section 207 of the Indian Land Consolidation Act (25 U.S.C. 2206) to the facts presented in that case to be unconstitutional, forcing the Department of the Interior to address the status of thousands of undivided interests in trust and restricted lands; "(11)(A) on February 19, 1999, the Secretary of the Interior issued a Secretarial Order which officially reopened the probate of all estates where an interest in land was ordered to escheat to an Indian tribe pursuant to section 207 of the Indian Land Consolidation Act (25 U.S.C. 2206); and "(B) the Secretarial Order also directed appropriate officials of the Bureau of Indian Affairs to distribute such interests 'to the rightful heirs and beneficiaries without regard to 25 U.S.C. 2206'; "(12) in the absence of comprehensive remedial legislation, the number of the fractional interests will continue to grow exponentially; "(13) the problem of the fractionation of Indian lands described in this section is the result of a policy of the Federal Government, cannot be solved by Indian tribes, and requires a solution under Federal law.[;] "(14) any devise or inheritance of an interest in trust or restricted Indian lands is a matter of Federal law; and "(15) consistent with the Federal policy of tribal self- determination, the Federal Government should encourage the recognized tribal government that exercises jurisdiction over a reservation to establish a tribal probate code for that reservation." DECLARATION OF POLICY Pub. L. 106-462, title I, Sec. 102, Nov. 7, 2000, 114 Stat. 1992, provided that: "It is the policy of the United States - "(1) to prevent the further fractionation of trust allotments made to Indians; "(2) to consolidate fractional interests and ownership of those interests into usable parcels; "(3) to consolidate fractional interests in a manner that enhances tribal sovereignty; "(4) to promote tribal self-sufficiency and self-determination; and "(5) to reverse the effects of the allotment policy on Indian tribes." AUTHORIZATION OF APPROPRIATIONS Pub. L. 106-462, title I, Sec. 105, Nov. 7, 2000, 114 Stat. 2007, provided that: "There are authorized to be appropriated not to exceed $8,000,000 for fiscal year 2001 and each subsequent fiscal year to carry out the provisions of this title [enacting sections 2205, 2206, and 2212 to 2219 of this title, amending this section and sections 348, 372, 373, 464, 2204, and 2207 of this title, repealing sections 331 to 333, 2205, and 2206 of this title, and enacting provisions set out as notes under this section and section 2206 of this title] (and the amendments made by this title) that are not otherwise funded under the authority provided for in any other provision of Federal law." -FOOTNOTE- (!1) So in original. The period probably should be a semicolon. -End- -CITE- 25 USC Sec. 2202 01/02/2006 -EXPCITE- TITLE 25 - INDIANS CHAPTER 24 - INDIAN LAND CONSOLIDATION -HEAD- Sec. 2202. Other applicable provisions -STATUTE- The provisions of section 465 of this title shall apply to all tribes notwithstanding the provisions of section 478 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). -SOURCE- (Pub. L. 97-459, title II, Sec. 203, Jan. 12, 1983, 96 Stat. 2517.) -End- -CITE- 25 USC Sec. 2203 01/02/2006 -EXPCITE- TITLE 25 - INDIANS CHAPTER 24 - INDIAN LAND CONSOLIDATION -HEAD- Sec. 2203. Adoption of land consolidation plan with approval of Secretary -STATUTE- (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) of this section, 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 The Secretary must execute such instrument of conveyance needed to effectuate a sale or exchange of tribal lands made pursuant to an approved tribal land consolidation plan unless he makes a specific finding that such sale or exchange is not in the best interest of the tribe or is not in compliance with the tribal land consolidation plan. (c) Below market value conveyance of Cherokee Nation of Oklahoma homesites The Secretary may execute instruments of conveyance for less than fair market value to effectuate the transfer of lands used as homesites held, on December 17, 1991, by the United States in trust for the Cherokee Nation of Oklahoma. Only the lands used as homesites, and described in the land consolidation plan of the Cherokee Nation of Oklahoma approved by the Secretary on February 6, 1987, shall be subject to this subsection. -SOURCE- (Pub. L. 97-459, title II, Sec. 204, Jan. 12, 1983, 96 Stat. 2517; Pub. L. 98-608, Sec. 1(1), Oct. 30, 1984, 98 Stat. 3171; Pub. L. 102-238, Sec. 3, Dec. 17, 1991, 105 Stat. 1908.) -MISC1- AMENDMENTS 1991 - Subsec. (a)(1). Pub. L. 102-238, Sec. 3(1), substituted "(1) except as provided by subsection (c) of this section, the sale price" for "(1) the sale price". Subsec. (c). Pub. L. 102-238, Sec. 3(2), added subsec. (c). 1984 - Subsec. (a). Pub. L. 98-608 amended subsec. (a) generally, substituting ": Provided, That - " for period at end and inserting five numbered pars., thereby correcting errors originally contained in this section as enacted by Pub. L. 97-459, the text of which had a portion of section 204 appearing in section 206 (classified to section 2205 of this title) as the result of inadvertent error in the execution of committee amendments (see House Report No. 97-908, Sept. 30, 1982) to the bill. Pub. L. 97-459 enacted subsec. (a) as ending with "tribal landholdings.", and included portion of section 204 containing proviso and five numbered pars. within text of section 206. Subsec. (b). Pub. L. 98-608 included subsec. (b) within this section and substituted a period for the dash after "tribal land consolidation plan", thereby correcting errors originally contained in this section as enacted by Pub. L. 97-459, which, as the result of inadvertent error in the execution of committee amendments (see House Report No. 97-908, Sept. 30, 1982) to the bill, enacted subsec. (b) as part of section 206(b) of Pub. L. 97-459 and ended it with "tribal land consolidation plan - ". -End- -CITE- 25 USC Sec. 2204 01/02/2006 -EXPCITE- TITLE 25 - INDIANS CHAPTER 24 - INDIAN LAND CONSOLIDATION -HEAD- Sec. 2204. Purchase of trust or restricted or controlled lands at no less than fair market value; requisite conditions -STATUTE- (a) Purchase of land (1) In general Subject to subsection (b) of this section, 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 The Indian tribe may purchase all interests in a tract described in paragraph (1) with the consent of the owners of undivided interests equal to at least 50 percent of the undivided interest in the tract. (B) Interest owned by tribe Interests owned by an Indian tribe in a tract may be included in the computation of the percentage of ownership of the undivided interests in that tract for purposes of determining whether the consent requirement under subparagraph (A) has been met. (b) Conditions applicable to purchase Subsection (a) of this section 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 This subsection shall be applicable only to parcels of land (including surface and subsurface interests, except with respect to a subsurface interest that has been severed from the surface interest, in which case this subsection shall apply only to the surface interest) which the Secretary has determined, pursuant to paragraph (2)(B),(!1) to be parcels of highly fractionated Indian land. (2) Requirements Each partition action under this subsection shall be conducted by the Secretary in accordance with the following requirements: (A) Application Upon 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); provided that no such application shall be valid or considered if it is received by the Secretary prior to the date that is 1 year after the date on which notice is published pursuant to section 8(a)(4) of the American Indian Probate Reform Act of 2004. (B) Costs of serving notice and publication The costs of serving and publishing notice under subparagraph (F) shall be borne by the applicant. Upon receiving written notice from the Secretary, the applicant must pay to the Secretary an amount determined by the Secretary to be the estimated costs of such service of notice and publication, or furnish a sufficient bond for such estimated costs within the time stated in the notice, failing which, unless an extension is granted by the Secretary, the Secretary shall not be required to commence the partition process under subparagraph (A) and may deny the application. The Secretary shall have the discretion and authority in any case to waive either the payment or the bond (or any portion of such payment or bond) otherwise required by this subparagraph, upon making a determination that such waiver will further the policies of this chapter. (C) Determination Upon receipt of an application pursuant to subparagraph (A), the Secretary shall determine whether the subject parcel meets the requirements set forth in section 2201(6) of this title to be classified as a parcel of highly fractionated Indian land. (D) Consent requirements (i) In general A 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 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 individuals For 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 After the Secretary has determined that the subject parcel is a parcel of highly fractionated Indian land pursuant to subparagraph (C), the Secretary shall cause to be made, in accordance with the provisions of this chapter for establishing fair market value, an appraisal of the fair market value of the subject parcel. (F) Notice to owners on completion of appraisal Upon 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 notice The 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 The Secretary shall use due diligence to provide all owners of interests in the subject parcel, as evidenced by the Secretary's records at the time of the determination under subparagraph (C), with actual notice of the partition proceedings by mailing a copy of the written notice described in clause (i) by certified mail, restricted delivery, to each such owner at the owner's last known address. For purposes of this subsection, owners shall be determined from the Secretary's land title records as of the date of the determination under subparagraph (C) or a date that is not more than 90 days prior to the date of mailing under this clause, whichever is later. In the event the written notice to an owner is returned undelivered, the Secretary shall attempt to obtain a current address for such owner by conducting a reasonable search (including a reasonable search of records maintained by local, State, Federal and tribal governments and agencies) and by inquiring with the Indian tribe with jurisdiction over the subject parcel, and, if different from that tribe, the Indian tribe of which the owner is a member, and, if successful in locating any such owner, send written notice by certified mail in accordance with this subclause. (II) Notice by publication The 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 After reviewing and considering comments or information timely submitted by any owner of an interest in the parcel in response to the notice required under subparagraph (F), the Secretary may, consistent with the provisions of this chapter for establishing fair market value - (I) order a new appraisal; or (II) approve the appraisal; provided that if the Secretary orders a new appraisal under subclause (I), notice of the new appraisal shall be given as specified in clause (ii). (ii) Notice Notice 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 appeal Upon 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 general Subject 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 bid If 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 purchase Any 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 A purchaser of a parcel of land under this subparagraph shall acquire title to the parcel in trust or restricted status, free and clear of any and all claims of title or ownership of all persons or entities (not including the United States) owning or claiming to own an interest in such parcel prior to the time of sale. (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 bids If 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 If an applicant fails to obtain any applicable consent required under the provisions of subparagraph (D) by the date established by the Secretary prior to the proposed sale, the Secretary may either extend the time for obtaining any such consent or deny the request for partition. (3) Enforcement (A) In general If 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 role With 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 loans The 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 The Secretary is authorized to adopt such regulations as may be necessary to implement the provisions of this subsection. Such regulations may include provisions for giving notice of sales to prospective purchasers eligible to submit bids at sales conducted under paragraph (2)(I). -SOURCE- (Pub. L. 97-459, title II, Sec. 205, Jan. 12, 1983, 96 Stat. 2517; Pub. L. 98-608, Sec. 1(2), Oct. 30, 1984, 98 Stat. 3171; Pub. L. 106-462, title I, Sec. 103(2), Nov. 7, 2000, 114 Stat. 1993; Pub. L. 108-374, Secs. 4, 6(a)(1), Oct. 27, 2004, 118 Stat. 1787, 1797; Pub. L. 109-157, Secs. 2, 8(a)(1), Dec. 30, 2005, 119 Stat. 2949, 2952.) -REFTEXT- REFERENCES IN TEXT Section 8(a)(4) of the American Indian Probate Reform Act of 2004, referred to in subsec. (c)(2)(A), is section 8(a)(4) of Pub. L. 108-374, which is set out as a note under section 2201 of this title. This chapter, referred to in subsec. (c)(2)(B), (E), (G)(i), was in the original "this Act", which was translated as reading "this title", meaning title II of Pub. L. 97-459, to reflect the probable intent of Congress. -MISC1- AMENDMENTS 2005 - Subsec. (a). Pub. L. 109-157, Sec. 2(1), added subsec. (a) and struck out heading and text of former subsec. (a). Text read as follows: "Subject to subsection (b) of this section, any Indian tribe may purchase at no less than the fair market value part or all of the interests in any tract of trust or restricted land within that tribe's reservation or otherwise subject to that tribe's jurisdiction with the consent of the owners of such interests. The tribe may purchase all of the interests in such tract with the consent of the owners of undivided interests equal to at least 50 percent of the undivided interest in such tract. Interests owned by an Indian tribe in a tract may be included in the computation of the percentage of ownership of the undivided interests in that tract for purposes of determining whether the consent requirement under the preceding sentence has been met." Subsec. (c). Pub. L. 109-157, Sec. 2(2), redesignated subsec. (d) as (c). Prior to amendment, no subsec. (c) had been enacted. Subsec. (c)(2)(G)(ii)(I). Pub. L. 109-157, Sec. 2(3)(A)(i), substituted "a value of the land that is equal to or greater than that of the earlier appraisal" for "a higher valuation of the land". Subsec. (c)(2)(I)(iii)(III). Pub. L. 109-157, Sec. 2(3)(A)(ii)(I), inserted "(if any)" after "this section". Subsec. (c)(2)(I)(iii)(IV)(aa). Pub. L. 109-157, Sec. 2(3)(A)(ii)(II)(aa), substituted "more" for "less". Subsec. (c)(2)(I)(iii)(IV)(bb). Pub. L. 109-157, Sec. 2(3)(A)(ii)(II)(bb), substituted "under paragraph (5)" for "to implement this section". Subsec. (c)(5). Pub. L. 109-157, Sec. 2(3)(B), in second sentence, substituted "may" for "shall". Subsec. (d). Pub. L. 109-157, Sec. 8(a)(1), amended directory language of Pub. L. 108-374, Sec. 4. See 2004 Amendment note below. Pub. L. 109-157, Sec. 2(2), redesignated subsec. (d) as (c). 2004 - Subsec. (a). Pub. L. 108-374, Sec. 6(a)(1), in second sentence, substituted "undivided interests equal to at least 50 percent of the undivided interest" for "over 50 per centum of the undivided interests". Subsec. (d). Pub. L. 108-374, Sec. 4, as amended by Pub. L. 109- 157, Sec. 8(a)(1), added subsec. (d). 2001 - Pub. L. 106-462, Sec. 103(2)(A)(iii), which directed substitution of subsec. (b) designation and heading and "Subsection (a) of this section applies on the condition that - " for ": Provided, That - ", was executed by making the substitution for "Provided, That - " to reflect the probable intent of Congress and the amendment by Pub. L. 106-462, Sec. 103(2)(A)(ii). See below. Pub. L. 106-462, Sec. 103(2)(A)(i), (ii), substituted subsec. (a) designation and heading and "Subject to subsection (b) of this section, any Indian" for "Any Indian" and ". Interests owned by an Indian tribe in a tract may be included in the computation of the percentage of ownership of the undivided interests in that tract for purposes of determining whether the consent requirement under the preceding sentence has been met." for the colon before "Provided, That - ". Subsec. (b)(2). Pub. L. 106-462, Sec. 103(2)(B)(ii), inserted "and" at end. Pub. L. 106-462, Sec. 103(2)(B)(i), which directed substitution of "if" for "If,", was executed by making the substitution for "if," to reflect the probable intent of Congress. Subsec. (b)(3). Pub. L. 106-462, Sec. 103(2)(C), added par. (3) and struck out former par. (3) which read as follows: "all purchases and sales initiated under this section shall be subject to approval by the Secretary." 1984 - Pub. L. 98-608 amended section generally, substituting "the owners of such interests. The tribe may purchase all of the interests in such tract with the consent of the owners of over 50 per centum of the undivided interests in such tract" for "of over 50 per centum of the owners or with the consent of the owners of over 50 per centum of undivided interests in such tract" before proviso. Par. (1). Pub. L. 98-608 redesignated par. (2) as (1) and inserted "for at least three years preceding the tribal initiative," before "may purchase such tract". Former par. (1), which provided that no such tract shall be acquired by any Indian or tribe over the objections of three or less owners owning 50 per centum or more of the total interest in such tract, was struck out. Par. (2). Pub. L. 98-608 added par. (2). Former par. (2) redesignated (1). Pars. (3), (4). Pub. L. 98-608 redesignated par. (4) as (3), and in par. (3), as so redesignated, substituted "subject to approval" for "approved" and struck out former par. (3), which provided that "this section shall not apply to any tract of land owned by less than fifteen persons; and". EFFECTIVE DATE OF 2005 AMENDMENT Amendment by Pub. L. 109-157 effective as if included in Pub. L. 108-374, see section 9 of Pub. L. 109-157, set out as a note under section 464 of this title. SEVERABILITY Invalidity of any provision of Pub. L. 108-374 not to affect validity of remaining provisions, except that each of subcls. (II), (III), or (IV) of subsection (c)(2)(I)(i) of this section deemed to be inseverable from the other two, such that invalidity of any one subcl. renders the other two without effect, see section 9 of Pub. L. 108-374, as amended, set out as a note under section 2201 of this title. -FOOTNOTE- (!1) So in original. Probably should be paragraph "(2)(C),". -End- -CITE- 25 USC Sec. 2205 01/02/2006 -EXPCITE- TITLE 25 - INDIANS CHAPTER 24 - INDIAN LAND CONSOLIDATION -HEAD- Sec. 2205. Tribal probate codes; acquisitions of fractional interests by tribes -STATUTE- (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) of this section. (b) Secretarial approval (1) In general Any tribal probate code enacted under subsection (a) of this section, and any amendment to such a tribal probate code, shall be subject to the approval of the Secretary. (2) Review and approval (A) In general Each Indian tribe that adopts a tribal probate code under subsection (a) of this section shall submit that code to the Secretary for review. Not later than 180 days after a tribal probate code is submitted to the Secretary under this paragraph, the Secretary shall review and approve or disapprove that tribal probate code. (B) Consequence of failures to approve or disapprove a tribal probate code If the Secretary fails to approve or disapprove a tribal probate code submitted for review under subparagraph (A) by the date specified in that subparagraph, the tribal probate code shall be deemed to have been approved by the Secretary, but only to the extent that the tribal probate code is consistent with Federal law and promotes the policies set forth in section 102 of the Indian Land Consolidation Act Amendments of 2000. (C) Consistency of tribal probate code with chapter The Secretary may not approve a tribal probate code, or any amendment to such a code, under this paragraph unless the Secretary determines that the tribal probate code promotes the policies set forth in section 102 of the Indian Land Consolidation Act Amendments of 2000. (D) Explanation If the Secretary disapproves a tribal probate code, or an amendment to such a code, under this paragraph, the Secretary shall include in the notice of disapproval to the Indian tribe a written explanation of the reasons for the disapproval. (E) Amendments (i) In general Each Indian tribe that amends a tribal probate code under this paragraph shall submit the amendment to the Secretary for review and approval. Not later than 60 days after receiving an amendment under this subparagraph, the Secretary shall review and approve or disapprove the amendment. (ii) Consequence of failure to approve or disapprove an amendment If the Secretary fails to approve or disapprove an amendment submitted under clause (i), the amendment shall be deemed to have been approved by the Secretary, but only to the extent that the amendment is consistent with Federal law and promotes the policies set forth in section 102 of the Indian Land Consolidation Act (!1) of 2000. (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 Each tribal probate code enacted under subsection (a) of this section shall apply only to the estate of a decedent who dies on or after the effective date of the tribal probate code. (B) Amendments to tribal probate codes With respect to an amendment to a tribal probate code referred to in subparagraph (A), that amendment shall apply only to the estate of a decedent who dies on or after the effective date of the amendment. (5) Repeals The repeal of a tribal probate code shall - (A) not become effective earlier than the date that is 180 days after the Secretary receives notice of the repeal; and (B) apply only to the estate of a decedent who dies on or after the effective date of the repeal. (c) Authority available to Indian tribes (1) Authority (A) In general If the owner of an interest in trust or restricted land devises an interest in such land to a non-Indian under section 2206(b)(2)(A)(ii) of this title, the Indian tribe that exercises jurisdiction over the parcel of land involved may acquire such interest by paying to the Secretary the fair market value of such interest, as determined by the Secretary on the date of the decedent's death. (B) Transfer The Secretary shall transfer payments received under subparagraph (A) to any person or persons who would have received an interest in land if the interest had not been acquired by the Indian tribe in accordance with this paragraph. (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 On request by the Indian tribe described in clause (i)(II)(bb), a restriction relating to the acquisition by the Indian tribe of an interest in a family farm involved shall be recorded as part of the deed relating to the interest involved. (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 A non-Indian devisee described in paragraph (1), may retain a life estate in the interest involved, including a life estate to the revenue produced from the interest. The amount of any payment required under paragraph (1) shall be reduced to reflect the value of any life estate reserved by a non-Indian devisee under this subparagraph. (3) Payments With respect to payments by an Indian tribe under paragraph (1), the Secretary shall - (A) upon the request of the tribe, allow a reasonable period of time, not to exceed 2 years, for the tribe to make payments of amounts due pursuant to paragraph (1); or (B) recognize alternative agreed upon exchanges of consideration or extended payment terms between the non-Indian devisee described in paragraph (1) and the tribe in satisfaction of the payment under paragraph (1). (d) Use of proposed findings by tribal justice systems (1) Tribal justice system defined In this subsection, the term "tribal justice system" has the meaning given that term in section 3602 of this title. (2) Regulations The Secretary by regulation may provide for the use of findings of fact and conclusions of law, as rendered by a tribal justice system, as proposed findings of fact and conclusions of law in the adjudication of probate proceedings by the Department of the Interior. -SOURCE- (Pub. L. 97-459, title II, Sec. 206, as added Pub. L. 106-462, title I, Sec. 103(3), Nov. 7, 2000, 114 Stat. 1993; amended Pub. L. 108-374, Sec. 6(a)(3), Oct. 27, 2004, 118 Stat. 1799; Pub. L. 109- 157, Sec. 3, Dec. 30, 2005, 119 Stat. 2950.) -REFTEXT- REFERENCES IN TEXT Section 102 of the Indian Land Consolidation Act Amendments of 2000, referred to in subsecs. (a)(2)(B), (b)(2)(B), (C), (E)(ii), is section 102 of Pub. L. 106-462, which is set out as a note under section 2201 of this title. This chapter, referred to in subsec. (b)(2)(C), was in the original "this Act", which was translated as reading "this title", meaning title II of Pub. L. 97-459, to reflect the probable intent of Congress. -MISC1- PRIOR PROVISIONS A prior section 2205, Pub. L. 97-459, title II, Sec. 206, Jan. 12, 1983, 96 Stat. 2518; Pub. L. 98-608, Sec. 1(3), Oct. 30, 1984, 98 Stat. 3172, related to descent and distribution of trust or restricted or controlled lands, tribal ordinance barring nonmembers of tribe or non-Indians from inheritance by devise or descent, and limitation on life estate, prior to repeal by Pub. L. 106-462, title I, Sec. 103(3), Nov. 7, 2000, 114 Stat. 1993. AMENDMENTS 2005 - Subsec. (b)(3)(A). Pub. L. 109-157, Sec. 3(1), added subpar. (A) and struck out former subpar. (A) which read as follows: "the date specified in section 2206(g)(5) of this title; or". Subsec. (c)(1)(A). Pub. L. 109-157, Sec. 3(2)(A), substituted "section 2206(b)(2)(A)(ii)" for "section 2206(a)(6)(A)". Subsec. (c)(2)(A)(i)(II)(bb). Pub. L. 109-157, Sec. 3(2)(B), inserted "in writing" after "agrees". 2004 - Subsec. (a)(3). Pub. L. 108-374, Sec. 6(a)(3)(A), added par. (3) and struck out heading and text of former par. (3). Text read as follows: "The Secretary shall not approve a tribal probate code if such code prevents an Indian person from inheriting an interest in an allotment that was originally allotted to his or her lineal ancestor." Subsec. (c)(1). Pub. L. 108-374, Sec. 6(a)(3)(B)(i)(I), (III), substituted "Authority" for "In general" in heading, designated existing provisions as subpar. (A), inserted heading, and struck out at end "The Secretary shall transfer such payment to the devisee.", and added subpar. (B). Subsec. (c)(1)(A). Pub. L. 108-374, Sec. 6(a)(3)(B)(i)(II), which directed the substitution of "section 207(b)(2)(A)(ii) of this title" for "section 207(a)(6)(A) of this title" in the original, could not be executed, because "of this title" did not appear in the original. Subsec. (c)(2)(A). Pub. L. 108-374, Sec. 6(a)(3)(B)(ii)(I), substituted "Inapplicability to certain interests" for "In general" in heading, designated existing provisions as cl. (i) and inserted heading, inserted subcl. (I) designation and added subcl. (II), and added cls. (ii) to (iv). Subsec. (c)(2)(B). Pub. L. 108-374, Sec. 6(a)(3)(B)(ii)(II), which directed the substitution of "paragraph (1)" for "subparagraph (A) or a non-Indian devisee described in section 2206(a)(6)(B) of this title" was executed by making the substitution for language which did not contain the words "of this title" in the original, to reflect the probable intent of Congress. EFFECTIVE DATE OF 2005 AMENDMENT Amendment by Pub. L. 109-157 effective as if included in Pub. L. 108-374, see section 9 of Pub. L. 109-157, set out as a note under section 464 of this title. -FOOTNOTE- (!1) So in original. Probably should be followed by "Amendments". -End- -CITE- 25 USC Sec. 2206 01/02/2006 -EXPCITE- TITLE 25 - INDIANS CHAPTER 24 - INDIAN LAND CONSOLIDATION -HEAD- Sec. 2206. Descent and distribution -STATUTE- (a) Nontestamentary disposition (1) Rules of descent Subject 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) Rules governing descent of estate (A) Surviving spouse If 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 1/3 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 heirs Where 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 If there is no Indian tribe with jurisdiction over the interests in trust or restricted lands that would otherwise descend under subparagraph (B)(v), then such interests shall be divided equally among co-owners of trust or restricted interests in the parcel; if there are no such co-owners, then to the United States, provided that any such interests in land passing to the United States under this subparagraph shall be sold by the Secretary and the proceeds from such sale deposited into the land acquisition fund established under section 2215 of this title and used for the purposes described in subsection (b) of that section. (ii) Contiguous parcel If the interests passing to the United States under this subparagraph are in a parcel of land that is contiguous to another parcel of trust or restricted land, the Secretary shall give the owner or owners of the trust or restricted interest in the contiguous parcel the first opportunity to purchase the interest at not less than fair market value determined in accordance with this chapter. If more than 1 such owner in the contiguous parcel request to purchase the parcel, the Secretary shall sell the parcel by public auction or sealed bid (as determined by the Secretary) at not less than fair market value to the owner of a trust or restricted interest in the contiguous parcel submitting the highest bid. (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). (ii) Surviving spouse If there is a surviving spouse, and such spouse was residing on a parcel of land described in clause (i) at the time of the decedent's death, the spouse shall receive a life estate without regard to waste in the decedent's trust or restricted interest in only such parcel, and the remainder interest in that parcel shall pass in accordance with clause (iii). (iii) Single heir rule Where 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) Exceptions Notwithstanding 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 decedent 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 (!1) 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) 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. (3) Right of representation If, under this subsection, all or any part of the estate of a decedent is to pass to children of a deceased child by right of representation, that part is to be divided into as many equal shares as there are living children of the decedent and pre- deceased children who left issue who survive the decedent. Each living child of the decedent, if any, shall receive 1 share, and the share of each pre-deceased child shall be divided equally among the pre-deceased child's children. (4) Special rule relating to survival In 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 Except as provided in paragraphs (2)(A) and (D) regarding the life estate of a surviving spouse, a trust or restricted interest in land or trust personalty that descends under the provisions of this subsection shall vest in the heir in the same trust or restricted status as such interest was held immediately prior to the decedent's death. (b) Testamentary disposition (1) General devise of an interest in trust or restricted land (A) In general Subject to any applicable Federal law relating to the devise or descent of trust or restricted land, or a tribal probate code 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 Any devise of a trust or restricted interest in land pursuant to subparagraph (A) to an Indian or the Indian tribe with jurisdiction over the interest shall be deemed to be a devise of the interest in trust or restricted status. Any devise of a trust or restricted interest in land to a person who is only eligible to be a devisee under clause (i) or (ii) of subparagraph (A) shall be presumed to be a devise of the interest in trust or restricted status unless language in such devise clearly evidences an intent on the part of the testator that the interest is to pass as a life estate or fee interest in accordance with paragraph (2)(A). (2) Devise of trust or restricted land as a life estate or in fee (A) In general Except 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 Any interest in trust or restricted land that is subject to section 464 of this title, may be devised only in accordance with - (i) that section; (ii) subparagraph (A)(i); or (iii) paragraph (1)(A); provided that 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). (3) General devise of an interest in trust personalty (A) Trust personality (!2) defined The term "trust personalty" as used in this section includes all funds and securities of any kind which are held in trust in an individual Indian money account or otherwise supervised by the Secretary. (B) In general Subject to any applicable Federal law relating to the devise or descent of such trust personalty, or a tribal probate code approved by the Secretary in accordance with section 2205 of this title, the owner of an interest in trust personalty may devise such an interest to any person or entity. (C) Maintenance as trust personalty In the case of a devise of an interest in trust personalty to a person or Indian tribe eligible to be a devisee under paragraph (1)(A), the Secretary shall maintain and continue to manage such interests as trust personalty. (D) Direct disbursement and distribution In the case of a devise of an interest in trust personalty to a person or Indian tribe not eligible to be a devisee under paragraph (1)(A), the Secretary shall directly disburse and distribute such personalty to the devisee. (4) Invalid devises and wills (A) Land Any trust or restricted interest in land that is not devised in accordance with paragraph (1) or (2) or that is not disposed of by a valid will shall descend in accordance with the applicable law of intestate succession as provided for in subsection (a) of this section. (B) Personalty Any trust personalty that is not disposed of by a valid will shall descend in accordance with the applicable law of intestate succession as provided for in subsection (a) of this section. (c) Joint tenancy; right of survivorship (1) Presumption of joint tenancy If a testator devises trust or restricted interests in the same parcel of land to more than 1 person, in the absence of clear and express language in the devise stating that the interest is to pass to the devisees as tenants in common, the devise shall be presumed to create a joint tenancy with the right of survivorship in the interests involved. (2) Exception Paragraph (1) shall not apply to any devise of an interest in trust or restricted land where the will in which such devise is made was executed prior to the date that is 1 year after the date on which the Secretary publishes the certification required by section 8(a)(4) of the American Indian Probate Reform Act of 2004. (d) Descent of off-reservation lands (1) Indian reservation defined For 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) Descent Except 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 The official authorized to adjudicate the probate of trust or restricted lands shall have the authority to approve agreements between a decedent's heirs and devisees to consolidate interests in trust or restricted lands. The agreements referred to in the preceding sentence may include trust or restricted lands that are not a part of the decedent's estate that is the subject of the probate. The Secretary may promulgate regulations for the implementation of this subsection. (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) Requirements The 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 grants In 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 There is authorized to be appropriated such sums as may be necessary to carry out the provisions of paragraph (3). (g) Applicable Federal law (1) In general Any references in subsections (a) and (b) of this section 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 laws Nothing in this chapter amends or otherwise affects the application of any law described 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 Federal 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) Effect of subsection Except to the extent that this chapter otherwise affects the application of a Federal law described in paragraph (2), nothing in this subsection limits the application of this chapter to trust or restricted land, interests in such land, or any other trust or restricted interests or assets. (h) Rules of interpretation In 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 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. (2) Class gifts (A) No differentiation between relationship by blood and relationship by affinity Terms of relationship that do not differentiate relationships by blood from those by affinity, such as "uncles", "aunts", "nieces", or "nephews", are construed to exclude relatives by affinity. Terms of relationship that do not differentiate relationships by the half blood from those by the whole blood, such as "brothers", "sisters", "nieces", or "nephews", are construed to include both types of relationships. (B) Meaning of "heirs" and "next of kin", etc.; time of ascertaining class A devise of trust or restricted interest in land or an interest in trust personalty to the testator's or another designated person's "heirs", "next of kin", "relatives", or "family" shall mean those persons, including the spouse, who would be entitled to take under the provisions of this chapter for nontestamentary disposition. The class is to be ascertained as of the date of the testator's death. (C) Time for ascertaining class In construing a devise to a class other than a class described in subparagraph (B), the class shall be ascertained as of the time the devise is to take effect in enjoyment. The surviving issue of any member of the class who is then dead shall take by right of representation the share which their deceased ancestor would have taken. (3) Meaning of "die without issue" and similar phrases In any devise under this chapter,(!3) the words "die without issue", "die without leaving issue", "have no issue", or words of a similar import shall be construed to mean that an individual had no lineal descendants in his lifetime or at his death, and not that there will be no lineal descendants at some future time. (4) Persons born out of wedlock In construing provisions of this chapter (!3) relating to lapsed and void devises, and in construing a devise to a person or persons described by relationship to the testator or to another, a person born out of wedlock shall be considered the child of the natural mother and also of the natural father. (5) Lapsed devises Subject to the provisions of subsection (b) of this section, where the testator devises or bequeaths a trust or restricted interest in land or trust personalty to the testator's grandparents or to the lineal descendent of a grandparent, and the devisee or legatee dies before the testator leaving lineal descendents, such descendents shall take the interest so devised or bequeathed per stirpes. (6) Void devises Except as provided in paragraph (5), and if the disposition shall not be otherwise expressly provided for by a tribal probate code approved under section 2205 of this title, if a devise other than a residuary devise of a trust or restricted interest in land or trust personalty fails for any reason, such interest shall become part of the residue and pass, subject to the provisions of subsection (b) of this section, to the other residuary devisees, if any, in proportion to their respective shares or interests in the residue. (7) Family cemetery plot If a family cemetery plot owned by the testator in trust or restricted status at his decease is not mentioned in the decedent's will, the ownership of the plot shall descend to his heirs as if he had died intestate. (i) Heirship by killing (1) Heir by killing defined As used in this subsection, "heir by killing" means any person who knowingly participates, either as a principal or as an accessory before the fact, in the willful and unlawful killing of the decedent. (2) No acquisition of property by killing Subject to any applicable Federal law relating to the devise or descent of trust or restricted land, no heir by killing shall in any way acquire any trust or restricted interests in land or interests in trust personalty as the result of the death of the decedent, but such property shall pass in accordance with this subsection. (3) Descent, distribution, and right of survivorship The 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 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 If the estate is held by a third person whose possession expires upon the death of the decedent, it shall remain in such person's hands for the period of time following the decedent's death equal to the life expectancy of the decedent but for the killing. (6) Preadjudication rule (A) In general If a person has been charged, whether by indictment, information, or otherwise by the United States, a tribe, or any State, with voluntary manslaughter or homicide in connection with a decedent's death, then any and all trust or restricted land or trust personalty that would otherwise pass to that person from the decedent's estate shall not pass or be distributed by the Secretary until the charges have been resolved in accordance with the provisions of this paragraph. (B) Dismissal or withdrawal Upon dismissal or withdrawal of the charge, or upon a verdict of not guilty, such land and personalty shall pass as if no charge had been filed or made. (C) Conviction Upon conviction of such person, and the exhaustion of all appeals, if any, the trust and restricted land and trust personalty in the estate shall pass in accordance with this subsection. (7) Broad construction; policy of subsection This subsection shall not be considered penal in nature, but shall be construed broadly in order to effect the policy that no person shall be allowed to profit by his own wrong, wherever committed. (j) General rules governing probate (1) Scope Except as provided under applicable Federal law or a tribal probate code approved under section 2205 of this title, the provisions of this subsection shall govern the probate of estates containing trust and restricted interests in land or trust personalty. (2) Pretermitted spouses and children (A) Spouses (i) In general Except as provided in clause (ii), if the surviving spouse of a testator married the testator after the testator executed the will of the testator, the surviving spouse shall receive the intestate share in the decedent's trust or restricted land and trust personalty that the spouse would have received if the testator had died intestate. (ii) Exception Clause (i) shall not apply to a trust or restricted interest 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 will Should 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) of this section, 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 If a testator executed the will of the testator before the birth or adoption of 1 or more children of the testator, and the omission of the children from the will is a product of inadvertence rather than an intentional omission, the children shall share in the trust or restricted interests in land and trust personalty as if the decedent had died intestate. (ii) Adopted heirs Any person recognized as an heir by virtue of adoption under the Act of July 8, 1940 (25 U.S.C. 372a), shall be treated as the child of a decedent under this subsection. (iii) Adopted-out children (I) In general For purposes of this chapter, an adopted person shall not be considered the child or issue of his natural parents, except in distributing the estate of a natural kin, other than the natural parent, who has maintained a family relationship with the adopted person. If a natural parent shall have married the adopting parent, the adopted person for purposes of inheritance by, from and through him shall also be considered the issue of such natural parent. (II) Eligible heir pursuant to other Federal law or tribal law Notwithstanding the provisions of subparagraph (B)(iii)(I), other Federal laws and laws of the Indian tribe with jurisdiction over the trust or restricted interest in land may otherwise define the inheritance rights of adopted-out children. (3) Divorce (A) Surviving spouse (i) In general An individual who is divorced from a decedent, or whose marriage to the decedent has been annulled, shall not be considered to be a surviving spouse unless, by virtue of a subsequent marriage, the individual is married to the decedent at the time of death of the decedent. (ii) Separation A decree of separation that does not dissolve a marriage, and terminate the status of husband and wife, shall not be considered a divorce for the purpose of this subsection. (iii) No effect on adjudications Nothing in clause (i) shall prevent the Secretary from giving effect to a property right settlement relating to a trust or restricted interest in land or an interest in trust personalty if 1 of the parties to the settlement dies before the issuance of a final decree dissolving the marriage of the parties to the property settlement. (B) Effect of subsequent divorce on a will or devise (i) In general If, after executing a will, a testator is divorced or the marriage of the testator is annulled, as of the effective date of the divorce or annulment, any disposition of trust or restricted interests in land or of trust personalty made by the will to the former spouse of the testator shall be considered to be revoked unless the will expressly provides otherwise. (ii) Property Property that is prevented from passing to a former spouse of a decedent under clause (i) shall pass as if the former spouse failed to survive the decedent. (iii) Provisions of wills Any provision of a will that is considered to be revoked solely by operation of this subparagraph shall be revived by the remarriage of a testator to the former spouse of the testator. (4) After-born heirs A child in gestation at the time of decedent's death will be treated as having survived the decedent if the child lives at least 120 hours after its birth. (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) of this section, 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 A person who is related to the decedent through 2 lines of relationship is entitled to only a single share of the trust or restricted land or trust personalty in the decedent's estate based on the relationship that would entitle such person to the larger share. (7) Notice (A) In general To the maximum extent practicable, the Secretary shall notify each owner of trust and restricted land of the provisions of this chapter. (B) Combined notices The notice under subparagraph (A) may, at the discretion of the Secretary, be provided with the notice required under subsection (a) of section 8 of the American Indian Probate Reform Act of 2004. (8) Renunciation or disclaimer of interests (A) In general Any person 18 years of age or older may renounce or disclaim an inheritance of a trust or restricted interest in land or in trust personalty through intestate succession or devise, either in full or subject to the reservation of a life estate (where the interest is an interest in land), in accordance with subparagraph (B), by filing a signed and acknowledged declaration with the probate decisionmaker prior to entry of a final probate order. No interest so renounced or disclaimed shall be considered to have vested in the renouncing or disclaiming heir or devisee, and the renunciation or disclaimer shall not be considered to be a transfer or gift of the renounced or disclaimed interest. (B) Eligible recipients of renounced or disclaimed interests; notice to recipients (i) Interests in land A 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) of this section (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 An interest in trust personalty may be renounced or disclaimed in favor of any person who would be eligible to be a devisee of such an interest under subsection (b)(3) of this section and shall pass to the recipient in accordance with the provisions of that subsection. (iii) Unauthorized renunciations and disclaimers Unless renounced or disclaimed in favor of a person or Indian tribe eligible to receive the interest in accordance with the provisions of this subparagraph, a renounced or disclaimed interest shall pass as if the renunciation or disclaimer had not been made. (C) Acceptance of interest A renunciation or disclaimer of an interest filed in accordance with this paragraph shall be considered accepted when implemented in a final order by a decisionmaker, and shall thereafter be irrevocable. No renunciation or disclaimer of an interest shall be included in such order unless the recipient of the interest has been given notice of the renunciation or disclaimer and has not refused to accept the interest. All disclaimers and renunciations filed and implemented in probate orders made effective prior to October 27, 2004, are hereby ratified. (D) Rule of construction Nothing in this paragraph shall be construed to allow the renunciation of an interest that is subject to subsection (a)(2)(D) of this section in favor of more than 1 person. (9) Consolidation agreements (A) In general During the pendency of probate, the decisionmaker is authorized to approve