§ 2206. — Descent and distribution.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 25USC2206]
TITLE 25--INDIANS
CHAPTER 24--INDIAN LAND CONSOLIDATION
Sec. 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, Sec. 207, as added Pub. L. 106-462, title I,
Sec. 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, Sec. 207, Jan. 12,
1983, 96 Stat. 2519; Pub. L. 98-608, Sec. 1(4), Oct. 30, 1984, 98 Stat.
3172; Pub. L. 101-644, title III, Sec. 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, Sec. 103(4), Nov. 7, 2000, 114 Stat. 1995.
Judicial Review
Pub. L. 106-462, title I, Sec. 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.
