§2206. Descent and distribution

(a) Testamentary disposition

(1) In general

Interests in trust or restricted land may be devised only to-

(A) the decedent's Indian spouse or any other Indian person; or

(B) the Indian tribe with jurisdiction over the land so devised.

(2) Life estate

Any devise of an interest in trust or restricted land to a non-Indian shall create a life estate with respect to such interest.

(3) Remainder

(A) In general

Except where the remainder from the life estate referred to in paragraph (2) is devised to an Indian, such remainder shall descend to the decedent's Indian spouse or Indian heirs of the first or second degree pursuant to the applicable law of intestate succession.

(B) Descent of interests

If a decedent described in subparagraph (A) has no Indian heirs of the first or second degree, the remainder interest described in such subparagraph shall descend to any of the decedent's collateral heirs of the first or second degree, pursuant to the applicable laws of intestate succession, if on the date of the decedent's death, such heirs were a co-owner of an interest in the parcel of trust or restricted land involved.

(C) Definition

For purposes of this section, the term "collateral heirs of the first or second degree" means the brothers, sisters, aunts, uncles, nieces, nephews, and first cousins, of a decedent.

(4) Descent to tribe

If the remainder interest described in paragraph (3)(A) does not descend to an Indian heir or heirs it shall descend to the Indian tribe that exercises jurisdiction over the parcel of trust or restricted lands involved, subject to paragraph (5).

(5) Acquisition of interest by Indian co-owners

An Indian co-owner of a parcel of trust or restricted land may prevent the descent of an interest in Indian land to an Indian tribe under paragraph (4) by paying into the decedent's estate the fair market value of the interest in such land. If more than 1 Indian co-owner offers to pay for such an interest, the highest bidder shall obtain the interest. If payment is not received before the close of the probate of the decedent's estate, the interest shall descend to the tribe that exercises jurisdiction over the parcel.

(6) Special rule

(A) In general

Notwithstanding paragraph (2), an owner of trust or restricted land who does not have an Indian spouse, Indian lineal descendant, an Indian heir of the first or second degree, or an Indian collateral heir of the first or second degree, may devise his or her interests in such land to any of the decedent's heirs of the first or second degree or collateral heirs of the first or second degree.

(B) Acquisition of interest by tribe

An Indian tribe that exercises jurisdiction over an interest in trust or restricted land described in subparagraph (A) may acquire any interest devised to a non-Indian as provided for in section 2205(c) of this title.

(b) Intestate succession

(1) In general

An interest in trust or restricted land shall pass by intestate succession only to a decedent's spouse or heirs of the first or second degree, pursuant to the applicable law of intestate succession.

(2) Life estate

Notwithstanding paragraph (1), with respect to land described in such paragraph, a non-Indian spouse or non-Indian heirs of the first or second degree shall only receive a life estate in such land.

(3) Descent of interests

If a decedent described in paragraph (1) has no Indian heirs of the first or second degree, the remainder interest from the life estate referred to in paragraph (2) shall descend to any of the decedent's collateral Indian heirs of the first or second degree, pursuant to the applicable laws of intestate succession, if on the date of the decedent's death, such heirs were a co-owner of an interest in the parcel of trust or restricted land involved.

(4) Descent to tribe

If the remainder interest described in paragraph (3) does not descend to an Indian heir or heirs it shall descend to the Indian tribe that exercises jurisdiction over the parcel of trust or restricted lands involved, subject to paragraph (5).

(5) Acquisition of interest by Indian co-owners

An Indian co-owner of a parcel of trust or restricted land may prevent the descent of an interest in such land for which there is no heir of the first or second degree by paying into the decedent's estate the fair market value of the interest in such land. If more than 1 Indian co-owner makes an offer to pay for such an interest, the highest bidder shall obtain the interest. If no such offer is made, the interest shall descend to the Indian tribe that exercises jurisdiction over the parcel of land involved.

(c) Joint tenancy; right of survivorship

(1) Testate

If a testator devises interests in the same parcel of trust or restricted lands to more than 1 person, in the absence of express language in the devise to the contrary, the devise shall be presumed to create joint tenancy with the right of survivorship in the land involved.

(2) Intestate

(A) In general

Any interest in trust or restricted land that-

(i) passes by intestate succession to more than 1 person, including a remainder interest under subsection (a) or (b) of this section; and

(ii) that constitutes 5 percent or more of the undivided interest in a parcel of trust or restricted land;

shall be held as tenancy in common.

(B) Limited interest

Any interest in trust or restricted land that-

(i) passes by intestate succession to more than 1 person, including a remainder interest under subsection (a) or (b) of this section; and

(ii) that constitutes less than 5 percent of the undivided interest in a parcel of trust or restricted land;

shall be held by such heirs with the right of survivorship.

(3) Effective date

(A) In general

This subsection (other than subparagraph (B)) shall become effective on the later of-

(i) the date referred to in subsection (g)(5) of this section; or

(ii) the date that is six months after the date on which the Secretary makes the certification required under subparagraph (B).

(B) Certification

Upon a determination by the Secretary that the Department of the Interior has the capacity, including policies and procedures, to track and manage interests in trust or restricted land held with the right of survivorship, the Secretary shall certify such determination and publish such certification in the Federal Register.

(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

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; and

(B) assist Indian landowners in accessing information pursuant to section 2216(e) of this title.

(3) Contracts

In carrying out this section, the Secretary may enter into contracts with entities that have expertise in Indian estate planning and tribal probate codes.

(g) Notification to Indian tribes and owners of trust or restricted lands

(1) In general

Not later than 180 days after November 7, 2000, the Secretary shall notify Indian tribes and owners of trust or restricted lands of the amendments made by the Indian Land Consolidation Act Amendments of 2000.

(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 chapter, with emphasis on the effect of the provisions of this section, on the testate disposition and intestate descent of their interests in trust or restricted land; and

(B) estate planning options available to the owners, including any opportunities for receiving estate planning assistance or advice.

(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 certify that the requirements of this subsection have been met and shall publish notice of such certification in the Federal Register.

(5) Effective date

The provisions of this section shall not apply to the estate of an individual who dies prior to the day that is 365 days after the Secretary makes the certification required under paragraph (4).

(Pub. L. 97–459, title II, §207, as added Pub. L. 106–462, title I, §103(4), Nov. 7, 2000, 114 Stat. 1995 .)

References in Text

The Indian Land Consolidation Act Amendments of 2000, referred to in subsec. (g)(1), is Pub. L. 106–462, Nov. 7, 2000, 114 Stat. 1991 . For complete classification of this Act to the Code, see Short Title of 2000 Amendment note set out under section 2201 of this title and Tables.

This chapter, referred to in subsec. (g)(2)(A), 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.

Prior Provisions

A prior section 2206, Pub. L. 97–459, title II, §207, Jan. 12, 1983, 96 Stat. 2519 ; Pub. L. 98–608, §1(4), Oct. 30, 1984, 98 Stat. 3172 ; Pub. L. 101–644, title III, §301(a), Nov. 29, 1990, 104 Stat. 4666 , related to escheat to tribe of trust or restricted or controlled lands, fractional interests, and Indian tribal codes, prior to repeal by Pub. L. 106–462, title I, §103(4), Nov. 7, 2000, 114 Stat. 1995 .

Judicial Review

Pub. L. 106–462, title I, §104, Nov. 7, 2000, 114 Stat. 2006 , provided that: "Notwithstanding section 207(g)(5) of the Indian Land Consolidation Act (25 U.S.C. 2206(f)(5) [2206(g)(5)]), after the Secretary of the Interior provides the certification required under section 207(g)(4) of such Act, the owner of an interest in trust or restricted land may bring an administrative action to challenge the application of such section 207 to the devise or descent of his or her interest or interests in trust or restricted lands, and may seek judicial review of the final decision of the Secretary of the Interior with respect to such challenge."

Section Referred to in Other Sections

This section is referred to in sections 2205, 2212, 2218 of this title.