[Senate Report 110-326]
[From the U.S. Government Publishing Office]
Calendar No. 700
110th Congress Report
SENATE
2d Session 110-326
======================================================================
AMENDING CERTAIN LAWS RELATING TO NATIVE AMERICANS TO MAKE TECHNICAL
CORRECTIONS, AND FOR OTHER PURPOSES
_______
April 16, 2008.--Ordered to be printed
_______
Mr. Dorgan, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 2087]
The Committee on Indian Affairs, to which was referred the
bill (S. 2087) to amend certain laws relating to Native
Americans to make technical corrections, and for other
purposes, having considered the same, reports favorably thereon
without amendment and recommends that the bill do pass.
Purpose
The purpose of S. 2087 is to amend several statutes to
revise miscellaneous provisions related to Indian tribes and
certain programs related to Native Americans.
Background
The Native American Omnibus Technical Corrections Act of
2007 would amend the Native American Graves Protection and
Repatriation Act, the Indian Tribal Justice Technical and Legal
Assistance Act of 2000, the Indian Tribal Justice Act, the
Omnibus Crime Control and Safe Streets Act of 1968, the USA
PATRIOT Improvement and Reauthorization Act of 2005, the Indian
Land Consolidation Act, and ``An Act to promote the development
of Indian arts and crafts and to create a board to assist
therein, and for other purposes.'' An explanation of each
provision is included below.
Legislative History
The Native American Omnibus Technical Corrections Act of
2007 (S. 2087) was introduced on September 25, 2007, by
Senators Dorgan and McCain, and was referred to the Committee
on Indian Affairs. Senator Baucus was added as a cosponsor on
October 19, 2007, and Senator Kyl on October 23, 2007.
On September 27, 2007, the Committee held an open business
meeting at which it voted to favorably report S. 2087 without
amendment to the full Senate, with a recommendation that the
bill do pass.
Committee Recommendation and Tabulation of Vote
On September 27, 2007, the Committee on Indian Affairs
convened a business meeting to consider S. 2087 and other
measures, and voted to have the bill favorably reported to the
full Senate, without amendment, with a recommendation that the
bill do pass.
Section-by-Section Analysis
Section 1. Short title
Section 1 provides the short title of the Act as the Native
American Omnibus Technical Corrections Act of 2007.
Section 2. Definition of Native American
Section 2 amends the definition of ``Native American'' in
the Native American Graves Protection and Repatriation Act (25
U.S.C. 3001(9)). The purpose of this amendment is to clarify
that in the context of repatriations, the term ``Native
American'' refers to a member of a tribe, a people, or a
culture that is or was indigenous to the United States.
Section 3. Indian tribal justice
Section 3 reauthorizes Indian tribal justice programs as
authorized under the Indian Tribal Justice Technical and Legal
Assistance Act of 2000 (25 U.S.C. 3666 and 3681(d)) and the
Indian Tribal Justice Act (25 U.S.C. 3621). The amendment
reauthorizes funding through the Department of Justice to both
Indian Legal Services programs for criminal and civil legal
assistance, and to tribal courts for development,
implementation, enhancement and continuing operation of tribal
justice systems, and through the Department of the Interior for
funding for tribal justice systems.
Section 4. Native American participation in methamphetamine grants
Section 4 authorizes tribal inclusion in methamphetamine
programs authorized under the Omnibus Crime Control and Safe
Streets Act of 1968 and the USA PATRIOT Improvement and
Reauthorization Act of 2005. The provision would add
territories and Indian tribes to a grant program authorized
under the Omnibus Crime Control and Safe Streets Act for
training and investigation in Methamphetamine Hot Spot areas.
This section would also add territories and Indian tribes to
two grant provisions authorized under the PATRIOT Act (Public
Law 109-177): grants to assist in the treatment of children
endangered by living in a residence where methamphetamine has
been manufactured or distributed, and grants to address
methamphetamine use by pregnant and parenting women offenders.
Section 5. Indian Land Consolidation Act
Section 5 amends the Indian Land Consolidation Act. This
provision is a revised version of S. 3526 as passed in the
109th Congress, based on feedback received from Indian Country.
This section would:
amend the definitions section of the Indian Land
Consolidation Act (25 U.S.C. 2201) by making technical and
clarifying changes to the definition of ``trust or restricted
lands'' and to the definition of ``land'' (insofar as it
pertains to permanent improvements).
amend the Indian Probate Code of the Indian Land
Consolidation Act (25 U.S.C. 2206), including--
--providing a tribal ``opt-out'' of the current rule
in the Code against devising Indian Reorganization Act
(IRA) reservation lands to non-Indians by allowing the
tribe to pass a resolution, requesting the Secretary of
the Interior to follow the rule otherwise applicable to
non-IRA reservations (which allows such devises);
--postponing the current law's presumption that a
devise to multiple persons creates a joint tenancy with
rights of survivorship until September 1, 2008;
--clarifying, simplifying and streamlining the
process for consolidating and purchasing fractional
interests during probate; and
--limiting the eligible purchasers in nonconsensual
probate purchases of very small interests to the
Secretary and, where the interest would be passing by
intestate succession to a nonmember, the Indian tribe.
Section 6. Indian goods and products
Section 6 amends the Act entitled ``An Act to provide the
development of Indian arts and crafts and to create a board to
assist therein, and for other purposes,'' also known as the
Indian Arts and Crafts Act of 1990. This section would amend
the Act to provide the following:
authorize any federal law enforcement officer to
conduct an investigation of an offense involving the sale of
any good that is misrepresented as an Indian produced good or
product that occurs on land under the jurisdiction of the
federal government.
authorize the Indian Arts and Crafts Board to
refer such an alleged offense to any federal law enforcement
officer (including BIA law enforcement officers, not just an
FBI officer, as under current law), for appropriate
investigation.
provide penalties for the misrepresentation of
Indian produced goods and products.
Cost and Budgetary Considerations
The cost estimate for S. 2087, as calculated by the
Congressional Budget Office, follows:
S. 2087--Native American Omnibus Technical Corrections Act of 2007
Summary: S. 2087 would extend the authorization of
appropriations through 2012 for Indian tribal courts and other
judicial systems. The bill also would make a number of changes
and technical corrections to current laws concerning Native
Americans. Many of those changes include amendments to the
Indian probate code. Assuming appropriations of the necessary
amounts, CBO estimates that implementing S. 2087 would cost $54
million in 2008 and $312 million over the 2008-2012 period.
S. 2087 also would modify penalties imposed on persons who
sell goods fraudulently marketed as Indian arts or products.
Criminal fines are recorded as revenues, deposited into the
Crime Victims Fund, and later spent. CBO estimates that
enacting S. 2087 could change the amount of revenues deposited
into the fund, and direct spending from the fund, but any such
effects would be insignificant.
S. 2087 contains no intergovernmental mandates, as defined
in the Unfunded Mandates Reform Act (UMRA) and would impose no
costs on state, local, or tribal governments.
S. 2087 would impose a private-sector mandate, as defined
in UMRA, on certain individuals by limiting the right they now
have to bid without the consent of the heirs on small
fractional property interests at probate. CBO expects that the
cost of complying with this mandate would not be significant
and would fall well below the annual threshold established in
UMRA for private-sector mandates ($131 million in 2007,
adjusted annually for inflation).
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 2087 is shown in the following table.
The costs of this legislation fall within budget function 450
(community and regional development).
------------------------------------------------------------------------
By fiscal year, in millions of
dollars--
---------------------------------------
2008 2009 2010 2011 2012
------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
BIA Tribal Justice Systems:
Authorization Level\1\...... 58 58 58 58 58
Estimated Outlays........... 52 58 58 58 58
DOJ Technical and Legal
Assistance for Tribal Justice:
Estimated Authorization 8 8 9 9 9
Level\2\...................
Estimated Outlays........... 2 4 6 7 9
Total Changes:
Estimated Authorization 66 66 67 67 67
Level..................
Estimated Outlays....... 54 62 64 65 67
------------------------------------------------------------------------
\1\A full-year appropriation for this program has not yet been enacted
for 2008. The 2007 appropriation for BIA Tribal Justice Systems was
about $14 million.
\2\A full-year appropriation for this program has not yet been enacted
for 2008. The 2007 appropriation for DOJ Technical and Legal
Assistance was about $8 million.
Note: BIA = Bureau of Indian Affairs; DOJ = Department of Justice.
Basis of estimate: For this estimate, CBO assumes that S.
2087 will be enacted near the start of fiscal year 2008, that
the necessary amounts will be appropriated each year, and that
outlays will follow historical spending patterns.
Spending subject to appropriation
S. 2087 would authorize the appropriation of $58 million in
2008 and $290 million over the 2008-2012 period for Bureau of
Indian Affairs (BIA) tribal justice systems. In addition to
these amounts, CBO estimates that an additional $43 million
would be needed under the bill through 2012 for Department of
Justice (DOJ) technical and legal assistance programs for
tribal justice. We estimate that other provisions of the bill,
including technical amendments to the Indian probate code,
would result in no significant federal spending. Assuming
appropriation of the authorized and estimated amounts, we
estimate that implementingS. 2087 would result in discretionary
outlays of $54 million in 2008 and $312 million over the 2008-2012
period.
BIA Tribal Justice Systems. S. 2087 would authorize the
appropriation of $58 million a year through 2012 for the Bureau
of Indian Affairs to provide grants to Indian tribes for tribal
justice systems and for administrative expenses of the Office
of Tribal Justice Support. The fiscal year 2007 appropriation
for those activities was about $14 million. Those grants could
be used to hire judicial personnel, provide technical
assistance and training, offer victim assistance, acquire law
library materials, or for other purposes. Assuming
appropriation of the authorized amounts, CBO estimates that
implementing this provision would cost $52 million in 2008 and
$284 million over the 2008-2012 period.
DOJ Technical and Legal Assistance for Tribal Justice. S.
2087 would authorize the appropriation of such sums as
necessary for fiscal years 2008-2012 to DOJ for grants to
support tribal courts and legal assistance programs. In 2007,
about $8 million was appropriated for those programs. CBO
estimates that continuing this program at the current level and
adjusting for anticipated inflation over the 2008-2012 period
would cost $28 million.
Indian Land Consolidation Act Amendments. S. 2087 would
make technical and clarifying amendments primarily to the
Indian probate code specified under the Indian Land
Consolidation Act. The Indian probate code was substantively
amended in 2004 under the American Indian Probate Reform Act
(Public Law 108-374), and S. 2087 would further modify the
code. Specifically, S. 2087 would allow tribal members to
transmit in a will certain reservation lands to non-Indians
upon the Secretary of the Interior's approval of a tribal
resolution. CBO estimates that implementing this provision
could result in cost savings to BIA because there could be
fewer individual owners of interests in trust lands. However,
we estimate that any potential savings would not be significant
over the 2008-2012 period.
The bill also would simplify the process for consolidating
and purchasing fractional interests in land during probate
proceedings. When the Secretary receives multiple requests to
purchase land during probate, the applicable heir or spouse
would choose the eligible buyer. Also, during certain probate
proceedings when the consent of an heir is not required, S.
2087 would limit who can purchase very small interests in land.
Last, the bill would delay the implementation of certain
inheritance provisions of the probate code until September 1,
2008. Based on information from BIA, CBO expects that those
changes would affect a small number of cases; therefore, we
estimate that BIA's cost to implement those provisions would be
insignificant.
Other Provisions. The bill would authorize the inclusion of
Indian tribes in DOJ's methamphetamine programs. The
legislation also would expand who can conduct an investigation
relating to the sale of counterfeit Indian art products. The
bill would allow any federal law enforcement officer to
investigate such a violation, rather than only employees of the
Federal Bureau of Investigation as under current law. CBO
estimates that the costs of those provisions would be
insignificant. Any additional spending would be subject to
appropriation.
Direct spending and revenues
S. 2087 would modify the penalties imposed on persons who
sell goods fraudulently marketed as Indian arts or products.
Criminal fines are recorded as revenues, deposited into the
Crime Victims Fund, and later spent. CBO estimates that
enacting S. 2087 could change the amount of revenues deposited
into the fund and direct spending from the fund, but any such
effects would be insignificant.
Estimated impact on state, local, and tribal governments:
S. 2087 contains no intergovernmental mandates as defined in
UMRA and would impose no costs on state, local, or tribal
governments. Several provisions would benefit tribes by
extending the authorization of current assistance programs and
making tribes eligible to participate in other programs. Any
costs to those tribes would be incurred voluntarily as a
condition of receiving federal assistance.
Estimated impact on the private sector: S. 2087 would
impose a private-sector mandate by limiting the right of
individuals to bid on small fractional interests at certain
probate proceedings. Currently a specified set of eligible
purchasers may bid on small fractional property interests
without the consent of the heirs at such proceedings. The bill
would allow only the Secretary of the Interior and the Indian
tribe with jurisdiction over the interests to bid on those
interests without consent in such cases. All other eligible
purchasers could still bid, but only with consent of the heirs
or surviving spouse. The restriction on bidding would only
apply to sales in which the interests represent less than 5
percent of the entire undivided ownership of the parcel of land
in cases where there is no will. The changes in probate code
would apply to very small interests in few cases. Thus, CBO
expects that the cost of complying with this mandate would fall
wellbelow the annual threshold established in UMRA for private-
sector mandates ($131 million in 2007, adjusted annually for
inflation).
Estimate prepared by: Federal Costs: Leigh Angres and Mark
Grabowicz; Impact on State, Local, and Tribal Governments:
Melissa Merrell; Impact on the Private Sector: MarDestinee
Perez.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Regulatory and Paperwork Impact Statement
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires that each report accompanying a bill evaluate
the regulatory and paperwork impact that would be incurred in
carrying out the bill. The Committee has concluded that the
regulatory and paperwork impacts of S. 2087 should be de
minimus.
Executive Communication
The Committee has received no official communication from
the Administration on the provisions of S. 2087.
Changes in Existing Law
In compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, the Committee states that the
enactment of S. 2087 will result in the following changes in
existing law, (existing law proposed to be omitted is enclosed
in black brackets and the new language to be added in italic,
existing law in which no change is proposed is shown in roman):
DEFINITION OF NATIVE AMERICAN
25 U.S.C. 3001(9)
25 U.S.C. 3001(9) is amended as follows:
(9) ``Native American'' means of, or relating to, a
tribe, people, or culture that is or was indigenous to
any geographic area that is now located within the
boundaries of the United States.
INDIAN TRIBAL JUSTICE
(PUB. L. 106-559)
25 U.S.C. 3666
Section 106 of the Indian Tribal Justice Technical and Legal
Assistance Act is amended as follows:
For purposes of carrying out the activities under this
subchapter, there are authorized to be appropriated such sums
as are necessary [for fiscal years 2000 through 2004] for
fiscal years 2008 through 2012.
25 U.S.C. 3681(d)
Section 201(d) of the Indian Tribal Justice Technical and Legal
Assistance Act is amended as follows:
For purposes of carrying out the activities under this
section, there are authorized to be appropriated such sums as
are necessary [for fiscal years 2000 through 2004] for fiscal
years 2008 through 2012.
(PUB. L. 106-559)
25 U.S.C. 3621
Section 201 of the Indian Tribal Justice Act is amended as
follows:
(a) Office.--There is authorized to be appropriated to
carry out the provisions of sections 3611 and 3612 of this
title, $7,000,000 for each of the fiscal years 2000 through
[2007] 2012. None of the funds provided under this subsection
may be used for the administrative expenses of the office.
(b) Base Support Funding for Tribal Justice Systems.--There
is authorized to be appropriated to carry out the provisions of
section 3613 of this title $50,000,000 for each of the fiscal
years 2000 through [2007] 2012.
(c) Administrative Expenses for Office.--There is
authorized to be appropriated, for the administrative expenses
of the Office, $500,000 for each of the fiscal years 2000
through [2007] 2012.
(d) Administrative Expenses for Tribal Judicial
Conferences.--There is authorized to be appropriated, for the
administrative expenses of tribal judicial conferences,
$500,000 for each of the fiscal years 2000 through [2007] 2010.
NATIVE AMERICAN PARTICIPATION IN METHAMPHETAMINE GRANTS
42 U.S.C. 3797cc(a)
SEC. 754. GRANTS TO HOT SPOT AREAS TO REDUCE AVAILABILITY OF
METHAMPHETAMINE.
Title I of the Omnibus Crime Control and Safe Streets Act of
1968 (42 U.S.C. 3711 et seq.) is amended by adding at
the end the following:
PART II--CONFRONTING USE OF METHAMPHETAMINE
SEC. 2996. AUTHORITY TO MAKE GRANTS TO ADDRESS PUBLIC SAFETY AND
METHAMPHETAMINE MANUFACTURING, SALE, AND USE IN HOT
SPOTS.
(a) Purpose and Program Authority.--
(1) Purpose.--It is the purpose of this part to
assist States, territories, and Indian tribes (as
defined in section 2704)--
(A) to carry out programs to address the
manufacture, sale, and use of methamphetamine
drugs; and
(B) to improve the ability of State [and
local] territorial, Tribal, and local
government institutions to carry out such
programs.
(2) Grant authorization.--The Attorney General,
through the Bureau of Justice Assistance in the Office
of Justice Programs may make grants to States,
territories, and Indian tribes to address the
manufacture, sale, and use of methamphetamine to
enhance public safety.
(3) Grant projects to address methamphetamine
manufacture sale and use.--Grants made under subsection
(a) may be used for programs, projects, and other
activities to--
(A) investigate, arrest and prosecute
individuals violating laws related to the use,
manufacture, or sale of methamphetamine;
(B) reimburse the Drug Enforcement
Administration for expenses related to the
clean up of methamphetamine clandestine labs;
(C) support State, Tribal, and local health
department and environmental agency services
deployed to address methamphetamine; and
(D) procure equipment, technology, or support
systems, or pay for resources, if the applicant
for such a grant demonstrates to the
satisfaction of the Attorney General that
expenditures for such purposes would result in
the reduction in the use, sale, and manufacture
of methamphetamine.
(4) Effect of subsection.--Nothing in this
subsection, or in the award or denial of any grant
pursuant to this subsection--
(A) allows grants authorized under paragraph
(3)(A) to be made to, or used by, an entity for
law enforcement activities that the entity
lacks jurisdiction to perform; or
(B) has any effect other than to authorize,
award, or deny a grant of funds to a State,
territory, or Indian tribe for the purposes
described in this subsection.
42 U.S.C. 3797cc-2(a)
SEC. 755. GRANTS FOR PROGRAMS FOR DRUG-ENDANGERED CHILDREN.
(a) In General.--The Attorney General shall make grants to
States, territories, and Indian tribes (as defined in section
2704 of the Omnibus Crime Control and Safe Streets Act of 1968
(42 U.S.C. 3797d)) for the purpose of carrying out programs to
provide comprehensive services to aid children who are living
in a home in which methamphetamine or other controlled
substances are unlawfully manufactured, distributed, dispensed,
or used.
* * * * * * *
42 U.S.C. 3797cc-3
SEC. 756. AUTHORITY TO AWARD COMPETITIVE GRANTS TO ADDRESS
METHAMPHETAMINE USE BY PREGNANT AND PARENTING WOMEN
OFFENDERS.
(a) Purpose and Program Authority.--
(1) Grant authorization.--The Attorney General may
award competitive grants to address the use of
methamphetamine among pregnant and parenting women
offenders to promote public safety, public health,
family permanence and well being.
(2) Purposes and program authority.--Grants awarded
under this section shall be used to facilitate or
enhance and collaboration between the criminal justice,
child welfare, and State, territorial, or Tribal
substance abuse systems in order to carry out programs
to address the use of methamphetamine drugs by pregnant
and parenting women offenders.
(b) Definitions.--In this section, the following
definitions shall apply:
(1) Child welfare agency.--The term ``child welfare
agency'' means the State, territorial, or Tribal agency
responsible for child [and/or] or family services and
welfare.
(2) Criminal justice agency.--The term ``criminal
justice agency'' means an agency of the State,
territory, or Indian tribe or local government or its
contracted agency that is responsible for detection,
arrest, enforcement, prosecution, defense,
adjudication, incarceration, probation, or parole
relating to the violation of the criminal laws of that
State, territory, or Indian tribe or local government.
(3) Indian tribe.--The term ``Indian tribe'' has the
meaning given the term in section 2704 of the Omnibus
Crime Control and Safe Streets Act of 1968 (42 U.S.C.
3797d).
(c) Applications.--
(1) In general.--No grant may be awarded under this
section unless an application has been submitted to,
and approved by, the Attorney General.
(2) Application.--An application for a grant under
this section shall be submitted in such form, and
contain such information, as the Attorney General may
prescribe by regulation or guidelines.
(3) Eligible entities.--The Attorney General shall
make grants to States, territories, and [Indian Tribes]
Indian tribes. Applicants must demonstrate extensive
collaboration with the State criminal justice agency
and child welfare agency in the planning and
implementation of the program.
(4) Contents.--In accordance with the regulations or
guidelines established by the Attorney General in
consultation with the Secretary of Health and Human
Services, each application for a grant under this
section shall contain a plan to expand the [State's
services] services of the State, territory, or Indian
tribe for pregnant and parenting women offenders who
are pregnant women [and/or] or women with dependent
children for the use of methamphetamine or
methamphetamine and other drugs and include the
following in the plan:
(A) A description of how the applicant will
work jointly with the [State] criminal justice
and child welfare agencies needs associated
with the use of methamphetamine or
methamphetamine and other drugs by pregnant and
parenting women offenders to promote family
stability and permanence.
(B) A description of the nature and the
extent of the problem of methamphetamine use by
pregnant and parenting women offenders.
(C) A certification that the State has
involved counties, Indian tribes, and other
units of local government, when appropriate, in
the development, expansion, modification,
operation or improvement of proposed programs
to address the use, manufacture, or sale of
methamphetamine.
(D) A certification that funds received under
this section will be used to supplement, not
supplant, other Federal, State, tribal and
local funds.
* * * * * * *
INDIAN LAND CONSOLIDATION ACT
25 U.S.C. 2201
Section 202 of the Indian Land Consolidation Act is amended as
follows:
SEC. 2201. DEFINITIONS.
* * * * * * *
(4)(i) ``trust or restricted lands'' means lands,
title to which is held by the United States in trust
for an Indian tribe or individual, or which is held by
an Indian tribe or individual subject to a restriction
by the United States against alienation; and
[``trust or restricted interest in land'' or] (ii)
``trust or restricted interest in land'' or ``trust or
restricted interest in a parcel of land'' means [an
interest in land, title to which] an interest in land,
the title to which interest is held in trust by the
United States for an Indian tribe or individual, or
which is held by an Indian tribe or individual subject
to a restriction by the United States against
alienation.
* * * * * * *
[(7) ``land'' means any real property, and includes
within its meaning for purposes of this chapter
improvements permanently affixed to real property;]
(7) the term ``land''--
(A) means any real property; and
(B) only for purposes of intestate succession
under section 207(a), includes the interest, if
any, owned by the decedent in improvements
permanently affixed to a parcel of trust or
restricted lands (subject to any valid mortgage
or other interest in such an improvement) if
the parcel was owned, in whole or in part, by
the decedent immediately prior to the death of
the decedent.
25 U.S.C. 2206
Section 207 of the Indian Land Consolidation Act is amended as
follows:
(a)(2)(D) Intestate Descent of Small Fractional Interests
in Land.--
(i) General rule.--Notwithstanding
subparagraphs (A) and (B), and subject
to any applicable Federal law, any
trust or restricted interest in land in
the decedent's estate that is not
disposed of by a valid will and
represents less than 5 percent of the
entire undivided ownership of the
parcel of land of which such interest
is a part, as evidenced by the
decedent's estate inventory at the time
of the heirship determination, shall
descend in accordance with [clauses
(ii) through (iv)] clauses (ii) through
(v).
* * * * * * *
[(v) Rule of construction.--This
subparagraph shall not be construed to
limit a person's right to devise any
trust or restricted interest by way of
a valid will in accordance with
subsection (b) of this section.]
(v) Effect of subparagraph.--Nothing
in this subparagraph limits the right
of any person to devise any trust or
restricted interest pursuant to a valid
will in accordance with subsection (b).
* * * * * * *
(b)(2)(B) Indian Reorganization Act Lands.--
[Any interest] (i) In general.--
Subject to clauses (ii) and (iii), any
interest in trust or restricted land
that is subject to section 464 of this
title, may be devised only in
accordance with--
[(i)](I) that section;
[(ii)](II) subparagraph
(A)(i); or
[(iii)](III) paragraph
(1)(A)[;].
(ii) Exception--
(I) In general.--
Notwithstanding clause (i), in
any case in which a resolution,
law, or other enactment of the
Indian tribe with jurisdiction
over the land of which an
interest described in clause
(i) is a part requests the
Secretary to apply subparagraph
(A)(ii) to devises of trust or
restricted land under the
jurisdiction of the Indian
tribe, the interest may be
devised in fee in accordance
with subparagraph (A)(ii).
(II) Effect.--Subclause (I)
shall apply with respect to a
devise of a trust or restricted
interest in land by any
decedent who dies on or after
the date on which the
applicable Indian tribe adopts
the resolution, law, or other
enactment described in
subclause (I), regardless of
the date on which the devise is
made.
[provided that nothing] (iii)
Effect.--Except as provided in clause
(ii), nothing in this section or in
section 464 of this title, shall be
construed to authorize the devise of
any interest in trust or restricted
land that is subject to section 464 of
this title to any person as a fee
interest under subparagraph (A)(ii).
* * * * * * *
(c) Joint Tenancy; Right of Survivorship.--
* * * * * * *
(2) Exception.--Paragraph (1) shall not apply to any
devise of an interest in trust or restricted land where
the will in which such devise is made was executed
prior to [the date that is 1 year after the date on
which the Secretary publishes the certification
required by section 8(a)(4) of the American Indian
Probate Reform Act of 2004.] September 1, 2008.
* * * * * * *
(o) Purchase Option at Probate.--
* * * * * * *
[(3) Request to purchase; auction; consent
requirements.--No sale] (3) Request to purchase;
consent requirements; multiple requests to purchase.--
(A) In general.--No sale of an interest in
probate shall occur under this subsection
unless--
[(A)] (i) an eligible purchaser
described in paragraph (2) submits a
written request to purchase prior to
the distribution of the interest to
heirs or devisees of the decedent and
in accordance with any regulations of
the Secretary; and
[(B)] (ii) except as provided in
paragraph (5), the heirs or devisees of
such interest, and the decedent's
surviving spouse, if any, receiving a
life estate under subparagraph (A) or
(D) of subsection (a)(2) of this
section consent to the sale.
[If the Secretary receives more than 1
request to purchase the same interest,
the Secretary shall sell the interest
by public auction or sealed bid (as
determined by the Secretary) at not
less than the appraised fair market
value to the eligible purchaser
submitting the highest bid.]
(B) Multiple requests to purchase.--Except
for interests purchased pursuant to paragraph
(5), if the Secretary receives a request with
respect to an interest from more than 1
eligible purchaser under paragraph (2), the
Secretary shall sell the interest to the
eligible purchaser that is selected by the
applicable heir, devisee, or surviving spouse.
(4) Appraisal and notice.--Prior to the sale of an
interest pursuant to this subsection, the Secretary
shall--
(A) appraise the interest at its fair market
value in accordance with this chapter; and
(B) provide eligible heirs, other devisees,
and the Indian tribe with jurisdiction over the
interest with written notice, sent by first
class mail, that the interest is available for
purchase in accordance with this subsection[;
and].
[(C) if the Secretary receives more than 1
request to purchase the interest by a person
described in subparagraph (B), provide notice
of the manner (auction or sealed bid), time and
place of the sale, a description, and the
appraised fair market value, of the interest to
be sold--
(i) to the heirs or other devisees
and the Indian tribe with jurisdiction
over the interest, by first class mail;
and
(ii) to all other eligible
purchasers, by posting written notice
in at least 5 conspicuous places in the
vicinity of the place of hearing.]
(5) Small undivided interests in Indian lands.--
(A) In general.--Subject to [subparagraph
(B), the consent of a person who is an heir]
subparagraph (C), the consent of a person who
is an heir or surviving spouse otherwise
required under paragraph (3)(B) shall not be
required for the [auction and] sale of an
interest at probate under this subsection if--
(i) the interest is passing by
intestate succession; [and]
(ii) prior to the [auction] sale the
Secretary determines in the probate
proceeding that [the interest passing
to such heir represents], at the time
of death of the applicable decedent,
the interest of the decedent in the
land represented less than 5 percent of
the entire undivided ownership of the
parcel of land as evidenced by the
Secretary's records as of the time the
determination is made[.];
(iii) the decedent died on or after
September 1, 2008; and
(iv)(I) the Secretary is purchasing
the interest under the program
authorized under section 213(a)(1); or
(II) after receiving a notice under
paragraph (4)(B), the Indian tribe with
jurisdiction over the interest is
proposing to purchase the interest from
an heir or surviving spouse who is not
residing on the property in accordance
with clause (i), and who is not a
member, and is not eligible to become a
member, of that Indian tribe.
(B) Authority to extend date.--The Secretary
may extend the date referred to in subparagraph
(A)(iii) by not more than 1 year if, by not
later than August 1, 2008, the Secretary
publishes in the Federal Register a notice of
the extension.
[(B)] (C) Exception.--Notwithstanding
subparagraph (A), the consent of such heir or
surviving spouse shall be required for the sale
at probate of the [heir's interest] interest of
the heir or surviving spouse if, at the time of
the decedent's death, the heir or surviving
spouse was residing on the parcel of land of
which the interest to be sold was a part.
* * * * * * *
25 U.S.C. 2212(a)(1)
* * * * * * *
(a) Acquisition by Secretary.--
(1) In general.--The Secretary may acquire, at the
discretion of the Secretary and with the consent of the
owner, or from an heir during probate in accordance
with [section 207(p)] section 207(o) of this title and
at fair market value, any fractional interest in trust
or restricted lands.
INDIAN ARTS AND CRAFTS ACT AMENDMENTS
25 U.S.C. 305(d)
Section 5 of the Act entitled ``An Act to provide the
development of Indian arts and crafts and to create a
board to assist therein, and for other purposes'' is
amended as follows:
[Referral for criminal and civil violations; complaints;
recommendations
(a) The Board may receive complaints of violations of
section 1159 of title 18 and refer complaints of such
violations to the Federal Bureau of Investigation for
appropriate investigation. After reviewing the investigation
report, the Board may recommend to the Attorney General of the
United States that criminal proceedings be instituted under
that section.
(b) The Board may recommend that the Secretary of the
Interior refer the matter to the Attorney General for civil
action under section 305e of this title.]
SEC. 5. CRIMINAL PROCEEDINGS; CIVIL ACTIONS.
(a) Definition of Federal Law Enforcement Officer.--In this
section, the term ``Federal law enforcement officer'' includes
a Federal law enforcement officer (as defined in section 115(c)
of title 18, United States Code).
(b) Conduct of Investigations.--Any Federal law enforcement
officer may conduct an investigation relating to a violation of
this Act that occurs on land under the jurisdiction of the
Federal Government.
(c) Criminal Proceedings.--
(1) Investigation.--
(A) In general.--The Board may refer an
alleged violation of section 1159 of title 18,
United States Code, to any Federal law
enforcement officer for appropriate
investigation.
(B) Referral not required.--A Federal law
enforcement officer may investigate an alleged
violation of section 1159 of that title
regardless of whether the Federal law
enforcement officer receives a referral under
subparagraph (A).
(2) Findings.--The findings of an investigation of an
alleged violation of section 1159 of title 18, United
States Code, by any Federal department or agency under
paragraph (1)(A) shall be submitted to--
(A) the Attorney General; or
(B) the Board.
(3) Recommendations.--On receiving the findings of an
investigation under paragraph (2), the Board may--
(A) recommend to the Attorney General that
criminal proceedings be initiated under section
1159 of title 18, United States Code; and
(B) provide such support to the Attorney
General relating to the criminal proceedings as
the Attorney General determines to be
appropriate.
(d) Civil Actions.--In lieu of, or in addition to, any
criminal proceeding under subsection (c), the Board may
recommend that the Attorney General initiate a civil action
under section 6.
25 U.S.C. 305e
Section 6 of the Act entitled ``An Act to provide the
development of Indian arts and crafts and to create a
board to assist therein, and for other purposes'' is
amended as follows:
SEC. 305E. CAUSE OF ACTION FOR MISREPRESENTATION OF INDIAN PRODUCED
GOODS
(a) Definitions.--In this section:
(1) Indian.--The term ``Indian'' means an individual
that--
(A) is a member of an Indian tribe; or
(B) is certified as an Indian artisan by an
Indian tribe.
(2) Indian product.--The term ``Indian product'' has
the meaning given the term in any regulation
promulgated by the Secretary.
(3) Indian tribe.--
(A) In general.--The term ``Indian tribe''
has the meaning given the term in section 4 of
the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450b).
(B) Inclusion.--The term ``Indian tribe''
includes, for purposes of this section only, an
Indian group that has been formally recognized
as an Indian tribe by--
(i) a State legislature;
(ii) a State commission; or
(iii) another similar organization
vested with State legislative tribal
recognition authority.
(4) Secretary.--The term ``Secretary'' means
the Secretary of the Interior.
[(a)] (b) Injunctive or Equitable Relief; Damages.--A
person specified in [subsection (c)] subsection (d) of this
section may, in a civil action in a court of competent
jurisdiction, bring an action against a person who, directly or
indirectly, offers or displays for sale or sells a good, with
or without a Government trademark, in a manner that falsely
suggests it is Indian produced, an Indian product, or the
product of a particular Indian or Indian tribe or Indian arts
and crafts organization, resident within the United States,
to--
(1) obtain injunctive or other equitable relief; and
(2) recover the greater of--
(A) treble damages; or
(B) in the case of each aggrieved individual
Indian, Indian tribe, or Indian arts and crafts
organization, not less than $1,000 for each day
on which the offer or display for sale or sale
continues.
For purposes of paragraph (2)(A), damages shall include any and
all gross profits accrued by the defendant as a result of the
activities found to violate this subsection.
[(b)] (c) Punitive Damages; Attorney's Fee.--In addition to
the relief specified in [subsection (a)] subsection (b) of this
section, the court may award punitive damages and the costs of
[suit] the civil action and a reasonable attorney's fee.
[(c) Persons Who May Initiate Civil Actions.--
(1) A civil action under subsection (a) of this
section may be commenced--
(A) by the Attorney General of the United
States upon request of the Secretary of the
Interior on behalf of an Indian who is a member
of an Indian tribe or on behalf of an Indian
tribe or Indian arts and crafts organization;
(B) by an Indian tribe on behalf of itself,
an Indian who is a member of the tribe, or on
behalf of an Indian arts and crafts
organization; or
(C) by an Indian arts and crafts organization
on behalf of itself, or by an Indian on behalf
of himself or herself.
(2) Any amount recovered pursuant to this section
shall be paid to the individual Indian, Indian tribe,
or Indian arts and crafts organization, except that--
(A) in the case of paragraph (1)(A), the
Attorney General may deduct from the amount
recovered--
(i) the amount for the costs of suit
and reasonable attorney's fees awarded
pursuant to subsection (b) of this
section and deposit the amount of such
costs and fees as a reimbursement
credited to appropriations currently
available to the Attorney General at
the time of receipt of the amount
recovered; and
(ii) the amount for the costs of
investigation awarded pursuant to
subsection (b) of this section and
reimburse the Board the amount of such
costs incurred as a direct result of
Board activities in the suit; and
(B) in the case of paragraph (1)(B), the
amount recovered for the costs of suit and
reasonable attorney's fees pursuant to
subsection (b) of this section may be deducted
from the total amount awarded under subsection
(a)(2) of this section.]
(d) Persons That May Initiate Civil Actions.--
(1) In general.--A civil action under subsection (b)
may be initiated by--
(A) the Attorney General, at the request of
the Secretary acting on behalf of--
(i) an Indian tribe;
(ii) an Indian; or
(iii) an Indian arts and crafts
organization;
(B) an Indian tribe, acting on behalf of--
(i) the Indian tribe;
(ii) a member of that Indian tribe;
or
(iii) an Indian arts and crafts
organization;
(C) an Indian; or
(D) an Indian arts and crafts organization.
(2) Disposition of amounts recovered.--
(A) In general.--Except as provided in
subparagraph (B), an amount recovered in a
civil action under this section shall be paid
to the Indian tribe, the Indian, or the Indian
arts and crafts organization on the behalf of
which the civil action was initiated.
(B) Exceptions.--
(i) Attorney general.-- In the case
of a civil action initiated under
paragraph (1)(A), the Attorney General
may deduct from the amount--
(I) the amount of the cost of
the civil action and reasonable
attorney's fees awarded under
subsection (c), to be deposited
in the Treasury and credited to
appropriations available to the
Attorney General on the date on
which the amount is recovered;
and
(II) the amount of the costs
of investigation awarded under
subsection (c), to reimburse
the Board for the activities of
the Board relating to the civil
action.
(ii) Indian tribe.--In the case of a
civil action initiated under paragraph
(1)(B), the Indian tribe may deduct
from the amount--
(I) the amount of the cost of
the civil action; and
(II) reasonable attorney's
fees.
[(d) Definitions.--As used in this section--
(1) the term ``Indian'' means any individual who is a
member of an Indian tribe; or for the purposes of this
section is certified as an Indian artisan by an Indian
tribe;
(2) subject to subsection (f) of this section, the
terms ``Indian product'' and ``product of a particular
Indian tribe or Indian arts and crafts organization''
has the meaning given such term in regulations which
may be promulgated by the Secretary of the Interior;
(3) the term ``Indian tribe'' means--
(A) any Indian tribe, band, nation, Alaska
Native village, or other organized group or
community which is recognized as eligible for
the special programs and services provided by
the United States to Indians because of their
status as Indians; or
(B) any Indian group that has been formally
recognized as an Indian tribe by a State
legislature or by a State commission or similar
organization legislatively vested with State
tribal recognition authority; and
(4) the term ``Indian arts and crafts organization''
means any legally established arts and crafts marketing
organization composed of members of Indian tribes.]
(e) Savings provision.--[In the event that] If any
provision of this section is held invalid, it is the intent of
Congress that the remaining provisions of this section shall
continue in full force and effect.
18 U.S.C. Section 1159
SEC. 1159. MISREPRESENTATION OF INDIAN PRODUCED GOODS AND PRODUCTS.
(a) It is unlawful to offer or display for sale or sell any
good, with or without a Government trademark, in a manner that
falsely suggests it is Indian produced, an Indian product, or
the product of a particular Indian or Indian tribe or Indian
arts and crafts organization, resident within the United
States.
[(b) Whoever knowingly violates subsection (a) shall--
(1) in the case of a first violation, if an
individual, be fined not more than $250,000 or
imprisoned not more than five years, or both, and, if a
person other than an individual, be fined not more than
$1,000,000; and
(2) in the case of subsequent violations, if an
individual, be fined not more than $1,000,000 or
imprisoned not more than fifteen years, or both, and,
if a person other than an individual, be fined not more
than $5,000,000.]
(b) Penalty.--Any person that knowingly violates subsection
(a) shall--
(1) in the case of a first violation by that person--
(A) if the applicable goods are offered or
displayed for sale at a total price of $1,000
or more, or if the applicable goods are sold
for a total price of $1,000 or more--
(i) in the case of an individual, be
fined not more than $250,000,
imprisoned for not more than 5 years,
or both; and
(ii) in the case of a person other
than an individual, be fined not more
than $1,000,000; and
(B) if the applicable goods are offered or
displayed for sale at a total price of less
than $1,000, or if the applicable goods are
sold for a total price of less than $1,000--
(i) in the case of an individual, be
fined not more than $25,000, imprisoned
for not more than 1 year, or both; and
(ii) in the case of a person other
than an individual, be fined not more
than $100,000; and
(2) in the case of a subsequent violation by that
person, regardless of the amount for which any good is
offered or displayed for sale or sold--
(A) in the case of an individual, be fined
under this title, imprisoned for not more than
15 years, or both; and
(B) in the case of a person other than an
individual, be fined not more than $5,000,000.
(c) As used in this section--
(1) the term ``Indian'' means any individual who is a
member of an Indian tribe, or for the purposes of this
section is certified as an Indian artisan by an Indian
tribe;
(2) the terms ``Indian product'' and ``product of a
particular Indian tribe or Indian arts and crafts
organization'' has the meaning given such term in
regulations which may be promulgated by the Secretary
of the Interior;
[(3) the term ``Indian tribe'' means--
(A) any Indian tribe, band, nation, Alaska
Native village, or other organized group or
community which is recognized as eligible for
the special programs and services provided by
the United States to Indians because of their
status as Indians; or
(B) any Indian group that has been formally
recognized as an Indian tribe by a State
legislature or by a State commission or similar
organization legislatively vested with State
tribal recognition authority; and]
(3) the term ``Indian tribe''--
(A) has the meaning given the term in section
4 of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450b); and
(B) includes, for purposes of this section
only, an Indian group that has been formally
recognized as an Indian tribe by--
(i) a State legislature;
(ii) a State commission; or
(iii) another similar organization
vested with State legislative tribal
recognition authority; and
* * * * * * *