25 U.S.C. § 2205 — Tribal probate codes; acquisitions of frac-

Page 444 TITLE 25—INDIANS § 2205 the provisions of this subsection. Such regula- tions may include provisions for giving notice of sales to prospective purchasers eligible to submit bids at sales conducted under para- graph (2)(I). (Pub. L. 97–459, title II, § 205, Jan. 12, 1983, 96 Stat. 2517; Pub. L. 98–608, § 1(2), Oct. 30, 1984, 98 Stat. 3171; Pub. L. 106–462, title I, § 103(2), Nov. 7, 2000, 114 Stat. 1993; Pub. L. 108–374, §§ 4, 6(a)(1), Oct. 27, 2004, 118 Stat. 1787, 1797; Pub. L. 109–157, §§ 2, 8(a)(1), Dec. 30, 2005, 119 Stat. 2949, 2952; Pub. L. 110–453, title II, § 207(b), Dec. 2, 2008, 122 Stat. 5030.) Editorial Notes REFERENCES IN TEXT Section 8(a)(4) of the American Indian Probate Re- form Act of 2004, referred to in subsec. (c)(2)(A), is sec- tion 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 trans- lated as reading ‘‘this title’’, meaning title II of Pub. L. 97–459, to reflect the probable intent of Congress. AMENDMENTS 2008—Subsec. (c)(2)(D)(i). Pub. L. 110–453 substituted ‘‘by the Secretary’’ for ‘‘by Secretary’’ in concluding provisions. 2005—Subsec. (a). Pub. L. 109–157, § 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 in- terests. 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, § 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, § 2(3)(A)(i), sub- stituted ‘‘a value of the land that is equal to or greater than that of the earlier appraisal’’ for ‘‘a higher valu- ation of the land’’. Subsec. (c)(2)(I)(iii)(III). Pub. L. 109–157, § 2(3)(A)(ii)(I), inserted ‘‘(if any)’’ after ‘‘this section’’. Subsec. (c)(2)(I)(iii)(IV)(aa). Pub. L. 109–157, § 2(3)(A)(ii)(II)(aa), substituted ‘‘more’’ for ‘‘less’’. Subsec. (c)(2)(I)(iii)(IV)(bb). Pub. L. 109–157, § 2(3)(A)(ii)(II)(bb), substituted ‘‘under paragraph (5)’’ for ‘‘to implement this section’’. Subsec. (c)(5). Pub. L. 109–157, § 2(3)(B), in second sen- tence, substituted ‘‘may’’ for ‘‘shall’’. Subsec. (d). Pub. L. 109–157, § 8(a)(1), amended direc- tory language of Pub. L. 108–374, § 4. See 2004 Amend- ment note below. Pub. L. 109–157, § 2(2), redesignated subsec. (d) as (c). 2004—Subsec. (a). Pub. L. 108–374, § 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, § 4, as amended by Pub. L. 109–157, § 8(a)(1), added subsec. (d). 2001—Pub. L. 106–462, § 103(2)(A)(iii), which directed substitution of subsec. (b) designation and heading and ‘‘Subsection (a) applies on the condition that—’’ for ‘‘: Provided, That—’’, was executed by making the sub- stitution for ‘‘Provided, That—’’ to reflect the probable intent of Congress and the amendment by Pub. L. 106–462, § 103(2)(A)(ii). See below. Pub. L. 106–462, § 103(2)(A)(i), (ii), substituted subsec. (a) designation and heading and ‘‘Subject to subsection (b), 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 deter- mining whether the consent requirement under the pre- ceding sentence has been met.’’ for the colon before ‘‘Provided, That—’’. Subsec. (b)(2). Pub. L. 106–462, § 103(2)(B)(ii), inserted ‘‘and’’ at end. Pub. L. 106–462, § 103(2)(B)(i), which directed substi- tution 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, § 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, sub- stituting ‘‘the owners of such interests. The tribe may purchase all of the interests in such tract with the con- sent of the owners of over 50 per centum of the undi- vided interests in such tract’’ for ‘‘of over 50 per cen- tum 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 ac- quired 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’’. Statutory Notes and Related Subsidiaries 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 5107 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. § 2205. Tribal probate codes; acquisitions of frac- tional interests by tribes (a) Tribal probate codes (1) In general Notwithstanding any other provision of law, any Indian tribe may adopt a tribal probate code to govern descent and distribution of trust or restricted lands that are— (A) located within that Indian tribe’s res- ervation; or (B) otherwise subject to the jurisdiction of that Indian tribe. (2) Possible inclusions A tribal probate code referred to in para- graph (1) may include— Page 445 TITLE 25—INDIANS § 2205 1 So in original. Probably should be followed by ‘‘Amend- ments’’. (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 sec- tion 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 tes- tator to reserve a life estate without re- gard to waste; and (iii) payment of fair market value in the manner prescribed under subsection (c)(2). (b) Secretarial approval (1) In general Any tribal probate code enacted under sub- section (a), and any amendment to such a trib- al probate code, shall be subject to the ap- proval of the Secretary. (2) Review and approval (A) In general Each Indian tribe that adopts a tribal pro- bate code under subsection (a) 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 pro- bate code. (B) Consequence of failures to approve or disapprove a tribal probate code If the Secretary fails to approve or dis- approve 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 con- sistent 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 Sec- retary determines that the tribal probate code promotes the policies set forth in sec- tion 102 of the Indian Land Consolidation Act Amendments of 2000. (D) Explanation If the Secretary disapproves a tribal pro- bate code, or an amendment to such a code, under this paragraph, the Secretary shall in- clude in the notice of disapproval to the In- dian tribe a written explanation of the rea- sons 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 re- view and approve or disapprove the amend- ment. (ii) Consequence of failure to approve or disapprove an amendment If the Secretary fails to approve or dis- approve 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 amend- ment 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 para- graph (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 Amer- ican 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) shall apply only to the estate of a decedent who dies on or after the effec- tive 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 es- tate 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 re- ceives 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 re- stricted 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 Page 446 TITLE 25—INDIANS § 2205 jurisdiction over the parcel of land involved may acquire such interest by paying to the Secretary the fair market value of such in- terest, as determined by the Secretary on the date of the decedent’s death. (B) Transfer The Secretary shall transfer payments re- ceived under subparagraph (A) to any person or persons who would have received an inter- est in land if the interest had not been ac- quired 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 inter- est in trust or restricted land if— (I) while the decedent’s estate is pend- ing 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 ac- quire the interest for fair market value if the interest is offered for sale to a per- son 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 en- force such a mortgage agreement in ac- cordance 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 grand- parent 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 land- owner. (B) Reservation of life estate A non-Indian devisee described in para- graph (1), may retain a life estate in the in- terest involved, including a life estate to the revenue produced from the interest. The amount of any payment required under para- graph (1) shall be reduced to reflect the value of any life estate reserved by a non-In- dian 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 ex- changes of consideration or extended pay- ment 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 sys- tems (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. (Pub. L. 97–459, title II, § 206, as added Pub. L. 106–462, title I, § 103(3), Nov. 7, 2000, 114 Stat. 1993; amended Pub. L. 108–374, § 6(a)(3), Oct. 27, 2004, 118 Stat. 1799; Pub. L. 109–157, § 3, Dec. 30, 2005, 119 Stat. 2950.) Editorial Notes 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 read- ing ‘‘this title’’, meaning title II of Pub. L. 97–459, to re- flect the probable intent of Congress. PRIOR PROVISIONS A prior section 2205, Pub. L. 97–459, title II, § 206, Jan. 12, 1983, 96 Stat. 2518; Pub. L. 98–608, § 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 inher- itance by devise or descent, and limitation on life es- tate, prior to repeal by Pub. L. 106–462, title I, § 103(3), Nov. 7, 2000, 114 Stat. 1993. AMENDMENTS 2005—Subsec. (b)(3)(A). Pub. L. 109–157, § 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, § 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, § 3(2)(B), in- serted ‘‘in writing’’ after ‘‘agrees’’. 2004—Subsec. (a)(3). Pub. L. 108–374, § 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 ap- prove a tribal probate code if such code prevents an In- Page 447 TITLE 25—INDIANS § 2206 1 So in original. Another par. (2) follows par. (5). dian person from inheriting an interest in an allotment that was originally allotted to his or her lineal ances- tor.’’ Subsec. (c)(1). Pub. L. 108–374, § 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 sub- par. (B). Subsec. (c)(1)(A). Pub. L. 108–374, § 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, be- cause ‘‘of this title’’ did not appear in the original. Subsec. (c)(2)(A). Pub. L. 108–374, § 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) des- ignation and added subcl. (II), and added cls. (ii) to (iv). Subsec. (c)(2)(B). Pub. L. 108–374, § 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 mak- ing the substitution for language which did not contain the words ‘‘of this title’’ in the original, to reflect the probable intent of Congress. Statutory Notes and Related Subsidiaries 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 5107 of this title. § 2206. Descent and distribution (a) Nontestamentary disposition (1) Rules of descent Subject to any applicable Federal law relat- ing to the devise or descent of trust or re- stricted property, any trust or restricted in- terest in land or interest in trust personalty that is not disposed of by a valid will— (A) shall descend according to an applica- ble tribal probate code approved in accord- ance with section 2205 of this title; or (B) in the case of a trust or restricted in- terest in land or interest in trust personalty to which a tribal probate code does not apply, shall descend in accordance with— (i) paragraphs (2) through (5); and (ii) other applicable Federal law. (2) 1 Rules governing descent of estate (A) Surviving spouse If there is a surviving spouse of the dece- dent, such spouse shall receive trust and re- stricted land and trust personalty in the es- tate as follows: (i) If the decedent is survived by 1 or more eligible heirs described in subpara- graph (B)(i), (ii), (iii), or (iv), the surviving spouse shall receive 1⁄3 of the trust person- alty of the decedent and a life estate with- out regard to waste in the interests in trust or restricted lands of the decedent. (ii) If there are no eligible heirs de- scribed 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 sur- viving spouse under the provisions of this subparagraph shall be maintained by the Secretary in an account as trust person- alty, 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 represen- tation, but only if such children of the de- ceased child survive the decedent) in equal shares. (ii) If the property does not pass under clause (i), to those of the decedent’s sur- viving great-grandchildren who are eligi- ble heirs, in equal shares. (iii) If the property does not pass under clause (i) or (ii), to the decedent’s sur- viving 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 dece- dent’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 dece- dent, 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 jurisdic- tion over the interests in trust or re- stricted lands that would otherwise de- scend 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-own- ers, 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 pro- ceeds 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.