25 U.S.C. § 373 — Disposal by will of allotments held under

Page 106 TITLE 25—INDIANS § 372–2 May 31, 1966, Pub. L. 89–435, title I, 80 Stat. 181. June 28, 1965, Pub. L. 89–52, title I, 79 Stat. 185. July 7, 1964, Pub. L. 88–356, title I, 78 Stat. 284. July 26, 1963, Pub. L. 88–79, title I, 77 Stat. 107. Aug. 9, 1962, Pub. L. 87–578, title I, 76 Stat. 345. Aug. 3, 1961, Pub. L. 87–122, title I, 75 Stat. 256. May 13, 1960, Pub. L. 86–455, title I, 74 Stat. 104. June 23, 1959, Pub. L. 86–60, title I, 73 Stat. 92. June 4, 1958, Pub. L. 85–439, title I, 72 Stat. 155. July 1, 1957, Pub. L. 85–77, title I, 71 Stat. 257. June 13, 1956, ch. 380, title I, 70 Stat. 257. June 16, 1955, ch. 147, title I, 69 Stat. 141. Aug. 26, 1954, ch. 935, Ch. VII, 68 Stat. 813. Statutory Notes and Related Subsidiaries SAVINGS PROVISION Pub. L. 101–301, § 12(b), May 24, 1990, 104 Stat. 211, pro- vided that: ‘‘Hearing officers heretofore appointed to preside over Indian probate proceedings pursuant to the proviso repealed by subsection (a) [25 U.S.C. 372–1], hav- ing met the qualifications required for appointment pursuant to section 3105 of title 5, United States Code, shall be deemed to have been appointed pursuant to that section.’’ § 372–2. Indian probate judges Notwithstanding any other provision of law, for fiscal year 2006 and each fiscal year there- after, for the purpose of adjudicating Indian pro- bate cases in the Department of the Interior, the hearing requirements of chapter 10 of this title are deemed satisfied by a proceeding conducted by an Indian probate judge, appointed by the Secretary without regard to the provisions of title 5 governing the appointments in the com- petitive service, for such period of time as the Secretary determines necessary: Provided, That the basic pay of an Indian probate judge so ap- pointed may be fixed by the Secretary without regard to the provisions of chapter 51, and sub- chapter III of chapter 53 of title 5, governing the classification and pay of General Schedule em- ployees, except that no such Indian probate judge may be paid at a level which exceeds the maximum rate payable for the highest grade of the General Schedule, including locality pay. (Pub. L. 109–54, title I, § 108, Aug. 2, 2005, 119 Stat. 522; Pub. L. 112–74, div. E, title I, § 111, Dec. 23, 2011, 125 Stat. 1009.) Editorial Notes AMENDMENTS 2011—Pub. L. 112–74 substituted ‘‘for fiscal year 2006 and each fiscal year thereafter, for the purpose of adju- dicating’’ for ‘‘in fiscal years 2006 through 2010, for the purpose of reducing the backlog of’’. § 372a. Heirs by adoption In probate matters under the exclusive juris- diction of the Secretary of the Interior, no per- son shall be recognized as an heir of a deceased Indian by virtue of an adoption— (1) Unless such adoption shall have been— (a) by a judgment or decree of a State court; (b) by a judgment or decree of an Indian court; (c) by a written adoption approved by the superintendent of the agency having juris- diction over the tribe of which either the adopted child or the adoptive parent is a member, and duly recorded in a book kept by the superintendent for that purpose; or (d) by an adoption in accordance with a procedure established by the tribal author- ity, recognized by the Department of the In- terior, of the tribe either of the adopted child or the adoptive parent, and duly re- corded in a book kept by the tribe for that purpose; or (2) Unless such adoption shall have been rec- ognized by the Department of the Interior prior to the effective date of this section or in the distribution of the estate of an Indian who has died prior to that date: Provided, That an adoption by Indian custom made prior to the effective date of this section may be made valid by recordation with the superintendent if both the adopted child and the adoptive par- ent are still living, if the adoptive parent re- quests that the adoption be recorded, and if the adopted child is an adult and makes such a request or the superintendent on behalf of a minor child approves of the recordation. This section shall not apply with respect to the distribution of the estates of Indians of the Five Civilized Tribes or the Osage Tribe in the State of Oklahoma, or with respect to the dis- tribution of estates of Indians who have died prior to the effective date of this section. (July 8, 1940, ch. 555, §§ 1, 2, 54 Stat. 746.) Editorial Notes REFERENCES IN TEXT For effective date of this section, referred to in text, see Effective Date note set out below. CODIFICATION First and second paragraphs of this section are from sections 1 and 2, respectively, of act July 8, 1940. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Act July 8, 1940, ch. 555, § 3, 54 Stat. 746, provided that: ‘‘This Act shall become effective six months after the date of its approval [July 8, 1940].’’ Executive Documents TRANSFER OF FUNCTIONS For transfer of functions of other officers, employees, and agencies of Department of the Interior, with cer- tain exceptions, to Secretary of the Interior, with power to delegate, see Reorg. Plan No. 3 of 1950, §§ 1, 2, eff. May 24, 1950, 15 F.R. 3174, 64 Stat. 1262, set out in the Appendix to Title 5, Government Organization and Employees. § 373. Disposal by will of allotments held under trust Any persons of the age of eighteen years or older having any right, title, or interest in any allotment held under trust or other patent con- taining restrictions on alienation or individual Indian moneys or other property held in trust by the United States shall have the right prior to the expiration of the trust or restrictive period, and before the issuance of a fee simple patent or the removal of restrictions, to dispose of such property by will, in accordance with the Indian Page 107 TITLE 25—INDIANS § 373b 1 So in original. Probably should be followed by a colon. Land Consolidation Act [25 U.S.C. 2201 et seq.] or a tribal probate code approved under such Act and regulations to be prescribed by the Sec- retary of the Interior: Provided, however, That no will so executed shall be valid or have any force or effect unless and until it shall have been ap- proved by the Secretary of the Interior: Provided further, That the Secretary of the Interior may approve or disapprove the will either before or after the death of the testator, and in case where a will has been approved and it is subse- quently discovered that there has been fraud in connection with the execution or procurement of the will the Secretary of the Interior is au- thorized within one year after the death of the testator to cancel the approval of the will, and the property of the testator shall thereupon de- scend or be distributed in accordance with the laws of the State wherein the property is lo- cated: Provided further, That the approval of the will and the death of the testator shall not oper- ate to terminate the trust or restrictive period, but the Secretary of the Interior may, in his dis- cretion, cause the lands to be sold and the money derived therefrom, or so much thereof as may be necessary, used for the benefit of the heir or heirs entitled thereto, remove the re- strictions, or cause patent in fee to be issued to the devisee or devisees, and pay the moneys to the legatee or legatees either in whole or in part from time to time as he may deem advisable, or use it for their benefit: Provided also, That this section and section 372 of this title shall not apply to the Five Civilized Tribes or the Osage Indians. (June 25, 1910, ch. 431, § 2, 36 Stat. 856; Feb. 14, 1913, ch. 55, 37 Stat. 678; Pub. L. 100–153, § 2, Nov. 5, 1987, 101 Stat. 886; Pub. L. 106–462, title I, § 106(b)(2), Nov. 7, 2000, 114 Stat. 2007.) Editorial Notes REFERENCES IN TEXT The Indian Land Consolidation Act, referred to in text, is title II of Pub. L. 97–459, Jan. 12, 1983, 96 Stat. 2517, which is classified generally to chapter 24 (§ 2201 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under sec- tion 2201 of this title and Tables. AMENDMENTS 2000—Pub. L. 106–462 substituted ‘‘with the Indian Land Consolidation Act or a tribal probate code ap- proved under such Act and regulations to be prescribed by the Secretary of the Interior:’’ for ‘‘with regulations to be prescribed by the Secretary of the Interior:’’. 1987—Pub. L. 100–153 which directed amendment of this section by substituting ‘‘the age of eighteen years or older’’ for ‘‘the age of twenty-one years, or over’’ was executed by substituting the new language for ‘‘the age of twenty-one years’’ as the probable intent of Con- gress because the words ‘‘, or over’’ did not appear. 1913—Act Feb. 14, 1913, amended section generally. § 373a. Disposition of trust or restricted estate of intestate without heirs; successor tribe; sale of land Upon final determination by the Secretary of the Interior that the Indian holder of a trust or restricted allotment of lands or an interest therein has died intestate without heirs, the lands or interest so owned, together with all ac- cumulated rents, issues, and profits therefrom held in trust for the decedent, shall escheat to the tribe owning the land at the time of allot- ment subject to the payment of such creditors’ claims as the Secretary of the Interior may find proper to be paid from the cash on hand or in- come accruing to said estate and subject to all valid existing agricultural, surface, and mineral leases and the rights of any person thereunder. If the tribe which owned the land at the time of allotment has been reorganized or reconsti- tuted by reason of amalgamation with another tribe or group of Indians or of subdivision within the tribe or otherwise, the land shall escheat to the tribe or group which has succeeded to the ju- risdiction of the original tribe over the area in question. If neither the tribe which owned the land at the time of allotment nor a successor tribe or group exists, the land or interest there- in shall be held in trust for such Indians as the Secretary may designate within the State or States wherein the land is situated or, if the Secretary determines that the land cannot ap- propriately be used by or for such Indians, it shall be sold, subject to all valid existing agri- cultural, surface, and mineral leases and the rights of any person thereunder, and the pro- ceeds of such sale shall be held in trust for such Indians as the Secretary may designate, within the State or States wherein the land is situated. (Nov. 24, 1942, ch. 640, § 1, 56 Stat. 1021.) § 373b. Restricted estate or homestead on the public domain If an Indian found to have died intestate with- out heirs was the holder of a restricted allot- ment or homestead or interest therein on the public domain, the land or interest therein and all accumulated rents, issues, and profits there- from shall escheat to the United States, subject to all valid existing agricultural, surface, and mineral leases and the rights of any person thereunder, and the land shall become part of the public domain subject to the payment of such creditors’ claims as the Secretary of the Interior may find proper to be paid from the cash on hand or income accruing to said estate: Provided, That if the Secretary determines that the land involved lies within or adjacent to an Indian community and may be advantageously used for Indian purposes, the land or interest therein shall escheat to the United States to be held in trust for such needy Indians as the Sec- retary of the Interior may designate, where the value of the estate does not exceed $50,000, and in case of estates exceeding said sum, such es- tates shall be held in trust by the United States for such Indians as the Congress may on and after November 24, 1942 designate, subject to all valid existing agricultural, surface, and mineral leases and the rights of any person thereunder 1 Provided further, That interests in all Burns pub- lic domain allotments located in Harney Coun- ty, Oregon, belonging to Indians who die intes- tate without heirs shall be held in trust by the United States for the Burns Paiute Indian Col-