109th CONGRESS
2d Session
S. 3885
To amend Public Law 98-513 to provide for the inheritance of small
fractional interests within the Lake Traverse Indian Reservation.
IN THE SENATE OF THE UNITED STATES
September 11, 2006
Mr. JOHNSON introduced the following bill; which was read twice and referred
to the Committee on Indian Affairs
A BILL
To amend Public Law 98-513 to provide for the inheritance of small
fractional interests within the Lake Traverse Indian Reservation.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Lake Traverse Reservation Act Amendments of
2006'.
SEC. 2. AMENDMENTS TO LAKE TRAVERSE HEIRSHIP ACT.
Public Law 98-513 is amended by striking section 5 (98 Stat. 2413) and inserting
the following:
`SEC. 5. INHERITANCE OF SMALL FRACTIONAL INTEREST.
`(a) Definitions- In this section:
`(1) ESCHEATMENT- The term `escheatment' means an escheatment to the Tribe
of an interest in land pursuant to this section.
`(2) SECRETARY- The term `Secretary' means the Secretary of the Interior.
`(3) SMALL FRACTIONAL INTEREST- The term `small fractional interest' means
an undivided trust or restricted interest in a parcel of land within the
reservation that--
`(A) represents less than 5 percent of the entire undivided ownership
of the parcel of land (as reflected in the decedent's estate inventory
as of the date on which the decisionmaker enters the final decision
determining heirs); and
`(B) does not exceed the equivalent of 2 1/2 acres if the interest were
to be expressed in terms of its proportionate share of the total acreage
of the parcel of land of which the parcel is a part.
`(b) Intestate Inheritance in General- Notwithstanding section 3, no small
fractional interest shall pass by intestate succession under this Act or
any other provision of law except as provided in subsection (c).
`(c) Inheritance by Tribe- If a person dies possessed of a small fractional
interest that has not been devised in accordance with subsection (d) to
1 or more eligible devisees described in that subsection, the small fractional
interest shall pass to the Tribe, with title to the interest to be held
by the United States in trust for the Tribe.
`(d) Inheritance by Testamentary Devise-
`(1) ELIGIBLE DEVISEES- Notwithstanding any other provision of this Act,
and subject to paragraph (2), a small fractional interest may be devised
only to the following eligible devisees:
`(i) is a member of the Tribe; or
`(ii) is eligible to be a member of the Tribe, on the condition that,
not later than 180 days after the date of receipt of notice of the
probate hearing, the person provides proof of enrollment in the Tribe
in accordance with the enrollment procedures of the Tribe.
`(2) REQUIREMENTS- No devise of a small fractional interest shall be valid
as to a devisee unless--
`(A) the devisee is eligible to receive the interest by devise under
paragraph (1);
`(B) the devisee is expressly identified in the devise by name; and
`(C) the devise is made in a will that has been approved by the Secretary
in accordance with section 2 of the Act of June 25, 1910 (36 Stat. 856,
chapter 431).
`(3) HOLDING IN TRUST- Any small fractional interest devised in accordance
with this subsection shall pass to the devisee or devisees on the death
of the testator, with title to be held by the United States in trust for
the devisee or devisees.
`(e) Notice- Not later than 180 days after the date of enactment of the
Lake Traverse Reservation Act Amendments of 2006, the Secretary shall provide
notice of the requirements of this section to owners of trust and restricted
interests in land within the Lake Traverse Indian Reservation by--
`(1) posting written notice of the amendment at the administrative headquarters
of the Tribe and at the Agency of the Bureau of Indian Affairs located
in Agency Village, South Dakota;
`(2) publishing the notice not fewer than 4 times in newspapers of general
circulation in all counties in which any part of the Lake Traverse Indian
Reservation is located; and
`(3) sending the notice by first class mail to the last known addresses
of Indians with interests in trust or restricted land within the Lake
Traverse Indian Reservation.
`(f) Certification- After providing notice under subsection (e), the Secretary
shall--
`(1) certify that notice has been given in accordance with that subsection;
and
`(2) publish notice of the certification in the Federal Register.
`(1) PURPOSES- The purposes of this subsection are--
`(A) to establish a process for providing compensation for escheatments;
and
`(B) to ratify the escheatments.
`(2) RATIFICATION OF ESCHEATMENTS-
`(A) IN GENERAL- Subject to the requirements of this subsection, each
escheatment is ratified.
`(B) HOLDING IN TRUST- The title to each interest subject to an escheatment
shall be held by the United States in trust for the Tribe.
`(3) ACTIONS BARRED- Notwithstanding any other provision of law, except
as provided in subsection (4)(C)(ii), no court shall have jurisdiction
over a claim challenging--
`(A) an escheatment of any property interest pursuant to this section;
or
`(B) the compensation provided for an escheatment.
`(A) IN GENERAL- The Secretary shall provide compensation in an amount
described in subparagraph (B) to any individual that, absent an escheatment,
would have inherited land or an interest in land.
`(i) IN GENERAL- In determining the amount of compensation to be provided
under subparagraph (A), the Secretary shall take into consideration--
`(I) any appraisal report prepared incident to the probate of the
estate of the Indian decedent who last owned the applicable interest
immediately prior to its escheat to the Tribe; or
`(II) if an appraisal report described in subclause (I) is not available,
the appraised value of the land or interest in land as of the date
of probate of the land or interest.
`(ii) INTEREST- The amount of compensation provided under this subsection
shall include interest calculated from the date of probate of the
applicable land or interest in land in accordance with section 3116
of title 40, United States Code.
`(C) REVIEW OF DETERMINATIONS-
`(i) ADMINISTRATIVE REVIEW- A determination by the Secretary of the
amount of compensation provided under this subsection shall be subject
to administrative review in accordance with regulations of the Secretary
contained in part 2 of title 25, Code of Federal Regulations (or successor
regulations).
`(I) IN GENERAL- No court shall have jurisdiction to review a determination
by the Secretary of the amount of compensation provided under this
subsection until the date on which a final decision is made with
respect to the administrative review of the determination.
`(aa) IN GENERAL- An action seeking judicial review of a determination
by the Secretary under this subsection shall be filed by not later than
1 year after the date described in subclause (I).
`(bb) FAILURE TO MEET DEADLINE- If the deadline described in item
(aa) is not met with respect to a determination of the Secretary, the determination
shall not be subject to judicial review.
`(D) EXCLUSIVE REMEDY- Compensation provided under this subsection with
respect to an escheatment shall be the exclusive remedy for the escheatment.
`(5) REGULATIONS- The Secretary may promulgate such regulations as the
Secretary determines to be necessary to carry out this subsection.
`(A) IN GENERAL- This section shall apply to escheatments only if--
`(i) a provision contained in any subsections (a) through (d) is determined
to be invalid for any reason by a court of competent jurisdiction;
and
`(ii) all appeals of such a determination are exhausted.
`(B) EFFECT OF SUBSECTION- Nothing in this subsection invalidates any
provision contained in any subsections (a) through (d).
`(h) Effect on Interests and Wills- Nothing in this section shall affect
any interest in the estate of a person who dies, or the validity or effect
of any will executed, before the date that is 1 year after the date on which
the Secretary publishes notice of the certification under subsection (f).'.
END
