Editorial Notes
References in Text
The Indian Reorganization Act, referred to in par. (2)(B), is act June 18, 1934, ch. 576, 48 Stat. 984, which was classified generally to subchapter V (§ 461 et seq.) of chapter 14 of this title prior to editorial reclassification as chapter 45 (§ 5101 et seq.) of this title. The term “Indian” was defined for purposes of this Act in section 479 of this title prior to editorial reclassification as section 5129 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 5101 of this title and Tables.
This chapter, referred to in par. (6), 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.
Amendments
2008—Par. (4). Pub. L. 110–453, § 207(a)(1), designated existing provisions as cls. (i) and (ii) and, in cl. (ii), substituted “an interest in land, the title to which interest” for “an interest in land, title to which”.
Par. (7). Pub. L. 110–453, § 207(a)(2), added par. (7) and struck out former par. (7) which read as follows: “ ‘land’ means any real property, and includes within its meaning for purposes of this chapter improvements permanently affixed to real property;”.
2004—Par. (2). Pub. L. 108–374, § 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, § 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, § 6(b)(3), added pars. (6) to (10).
2000—Par. (1). Pub. L. 106–462, § 103(1)(A), substituted “(1)‘Indian tribe’ or ‘tribe’ ” for “(1) ‘tribe’ ”.
Par. (2). Pub. L. 106–462, § 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, § 103(1)(C)–(E), added par. (5).
Statutory Notes and Related Subsidiaries
Notice; Effective Date of 2004 Amendment
Pub. L. 108–374, § 8, Oct. 27, 2004, 118 Stat. 1809, as amended by Pub. L. 109–221, title V, § 501(b)(3), May 12, 2006, 120 Stat. 344, 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 Dates.—
“(1) In general.—
Except as provided in paragraph (2), the amendments made by this Act [see Short Title of 2004 Amendment note below] apply on and after 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].
“(2) Exceptions.—The following provisions of law apply as of the date of enactment of this Act [Oct. 27, 2004]:
“(C)
The amendments made by section 4, section 5, paragraphs (1), (3), (4), (5), (6), (7), (8), (9), (10), and (11) of section 6(a), section 6(b)(3), and section 7 of this Act [see Tables for classification].”
Short Title of 2005 Amendment
Pub. L. 109–157, § 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, § 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, § 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, § 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’.”
Regulations
Pub. L. 108–374, § 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, § 9, Oct. 27, 2004, 118 Stat. 1810, as amended by Pub. L. 109–157, § 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, § 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;
“(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, [§]102,
November 7, 2000,
114 Stat. 1992 [set out as a note below].”
Pub. L. 106–462, title I, § 101, Nov. 7, 2000, 114 Stat. 1991, provided that:
“Congress finds that—
“(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)
“(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, § 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, § 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,
2204,
2207, and
5107 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.”