25 U.S.C. § 2204 : US Code - Section 2204: Purchase of trust or restricted or controlled lands at no less than fair market value; requisite conditions

Search 25 U.S.C. § 2204 : US Code - Section 2204: Purchase of trust or restricted or controlled lands at no less than fair market value; requisite conditions

(a) Purchase of land
(1) In general
Subject to subsection (b) of this section, any Indian tribe may
purchase, at not less than fair market value and with the consent
of the owners of the interests, part or all of the interests in -

(A) any tract of trust or restricted land within the
boundaries of the reservation of the tribe; or
(B) land that is otherwise subject to the jurisdiction of the
tribe.
(2) Required consent
(A) In general
The Indian tribe may purchase all interests in a tract
described in paragraph (1) with the consent of the owners of
undivided interests equal to at least 50 percent of the
undivided interest in the tract.
(B) Interest owned by tribe
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 subparagraph (A) has been
met.
(b) Conditions applicable to purchase
Subsection (a) of this section applies on the condition that -
(1) any Indian owning any undivided interest, and in actual use
and possession of such tract for at least three years preceding
the tribal initiative, may purchase such tract by matching the
tribal offer;
(2) if at any time within five years following the date of
acquisition of such land by an individual pursuant to this
section, such property is offered for sale or a petition is filed
with the Secretary for removal of the property from trust or
restricted status, the tribe shall have 180 days from the date it
is notified of such offer or petition to acquire such property by
paying to the owner the fair market value as determined by the
Secretary; and
(3) the approval of the Secretary shall be required for a land
sale initiated under this section, except that such approval
shall not be required with respect to a land sale transaction
initiated by an Indian tribe that has in effect a land
consolidation plan that has been approved by the Secretary under
section 2203 of this title.
(c) Partition of highly fractionated Indian lands
(1) Applicability
This subsection shall be applicable only to parcels of land
(including surface and subsurface interests, except with respect
to a subsurface interest that has been severed from the surface
interest, in which case this subsection shall apply only to the
surface interest) which the Secretary has determined, pursuant to
paragraph (2)(B),(!1) to be parcels of highly fractionated Indian
land.
(2) Requirements
Each partition action under this subsection shall be conducted
by the Secretary in accordance with the following requirements:
(A) Application
Upon receipt of any payment or bond required under
subparagraph (B), the Secretary shall commence a process for
partitioning a parcel of land by sale in accordance with the
provisions of this subsection upon receipt of an application by
-
(i) the Indian tribe with jurisdiction over the subject
land that owns an undivided interest in the parcel of land;
or
(ii) any person owning an undivided interest in the parcel
of land who is eligible to bid at the sale of the parcel
pursuant to subclause (II), (III), or (IV) of subparagraph
(I)(i);
provided that no such application shall be valid or considered
if it is received by the Secretary prior to the date that is 1
year after the date on which notice is published pursuant to
section 8(a)(4) of the American Indian Probate Reform Act of
2004.
(B) Costs of serving notice and publication
The costs of serving and publishing notice under subparagraph
(F) shall be borne by the applicant. Upon receiving written
notice from the Secretary, the applicant must pay to the
Secretary an amount determined by the Secretary to be the
estimated costs of such service of notice and publication, or
furnish a sufficient bond for such estimated costs within the
time stated in the notice, failing which, unless an extension
is granted by the Secretary, the Secretary shall not be
required to commence the partition process under subparagraph
(A) and may deny the application. The Secretary shall have the
discretion and authority in any case to waive either the
payment or the bond (or any portion of such payment or bond)
otherwise required by this subparagraph, upon making a
determination that such waiver will further the policies of
this chapter.
(C) Determination
Upon receipt of an application pursuant to subparagraph (A),
the Secretary shall determine whether the subject parcel meets
the requirements set forth in section 2201(6) of this title to
be classified as a parcel of highly fractionated Indian land.
(D) Consent requirements
(i) In general
A parcel of land may be partitioned under this subsection
only if the applicant obtains the written consent of -
(I) the Indian tribe with jurisdiction over the subject
land if such Indian tribe owns an undivided interest in the
parcel;
(II) any owner who, for the 3-year period immediately
preceding the date on which the Secretary receives the
application, has
(aa) continuously maintained a bona fide residence on
the parcel; or
(bb) operated a bona fide farm, ranch, or other
business on the parcel; and
(III) the owners (including parents of minor owners and
legal guardians of incompetent owners) of at least 50
percent of the undivided interests in the parcel, but only
in cases where the Secretary determines that, based on the
final appraisal prepared pursuant to subparagraph (F), any
1 owner's total undivided interest in the parcel (not
including the interest of an Indian tribe or that of the
owner requesting the partition) has a value in excess of
$1,500.
Any consent required by this clause must be in writing and
acknowledged before a notary public (or other official
authorized to make acknowledgments), and shall be approved by
Secretary unless the Secretary has reason to believe that the
consent was obtained as a result of fraud or undue influence.
(ii) Consent by the Secretary on behalf of certain
individuals
For the purposes of clause (i)(III), the Secretary may
consent on behalf of -
(I) undetermined heirs of trust or restricted interests
and owners of such interests who are minors and legal
incompetents having no parents or legal guardian; and
(II) missing owners or owners of trust or restricted
interests whose whereabouts are unknown, but only after a
search for such owners has been completed in accordance
with the provisions of this subsection.
(E) Appraisal
After the Secretary has determined that the subject parcel is
a parcel of highly fractionated Indian land pursuant to
subparagraph (C), the Secretary shall cause to be made, in
accordance with the provisions of this chapter for establishing
fair market value, an appraisal of the fair market value of the
subject parcel.
(F) Notice to owners on completion of appraisal
Upon completion of the appraisal, the Secretary shall give
notice of the requested partition and appraisal to all owners
of undivided interests in the parcel, in accordance with
principles of due process. Such notice shall include the
following requirements:
(i) Written notice
The Secretary shall attempt to give each owner written
notice of the partition action stating the following:
(I) That a proceeding to partition the parcel of land by
sale has been commenced.
(II) The legal description of the subject parcel.
(III) The owner's ownership interest in the subject
parcel as evidenced by the Secretary's records as of the
date that owners are determined in accordance with clause
(ii).
(IV) The results of the appraisal.
(V) The owner's right to receive a copy of the appraisal
upon written request.
(VI) The owner's right to comment on or object to the
proposed partition and the appraisal.
(VII) That the owner must timely comment on or object in
writing to the proposed partition or the appraisal, in
order to receive notice of approval of the appraisal and
right to appeal.
(VIII) The date by which the owner's written comments or
objections must be received, which shall not be less than
90 days after the date that the notice is mailed under this
clause or last published under clause (ii)(II).
(IX) The address for requesting copies of the appraisal
and for submitting written comments or objections.
(X) The name and telephone number of the official to be
contacted for purposes of obtaining information regarding
the proceeding, including the time and date of the auction
of the land or the date for submitting sealed bids.
(XI) Any other information the Secretary deems to be
appropriate.
(ii) Manner of service
(I) Service by certified mail
The Secretary shall use due diligence to provide all
owners of interests in the subject parcel, as evidenced by
the Secretary's records at the time of the determination
under subparagraph (C), with actual notice of the partition
proceedings by mailing a copy of the written notice
described in clause (i) by certified mail, restricted
delivery, to each such owner at the owner's last known
address. For purposes of this subsection, owners shall be
determined from the Secretary's land title records as of
the date of the determination under subparagraph (C) or a
date that is not more than 90 days prior to the date of
mailing under this clause, whichever is later. In the event
the written notice to an owner is returned undelivered, the
Secretary shall attempt to obtain a current address for
such owner by conducting a reasonable search (including a
reasonable search of records maintained by local, State,
Federal and tribal governments and agencies) and by
inquiring with the Indian tribe with jurisdiction over the
subject parcel, and, if different from that tribe, the
Indian tribe of which the owner is a member, and, if
successful in locating any such owner, send written notice
by certified mail in accordance with this subclause.
(II) Notice by publication
The Secretary shall give notice by publication of the
partition proceedings to all owners that the Secretary was
unable to serve pursuant to subclause (I), and to unknown
heirs and assigns by -
(aa) publishing the notice described in clause (i) at
least 2 times in a newspaper of general circulation in
the county or counties where the subject parcel of land
is located or, if there is an Indian tribe with
jurisdiction over the parcel of land and that tribe
publishes a tribal newspaper or newsletter at least once
every month, 1 time in such newspaper of general
circulation and 1 time in such tribal newspaper or
newsletter;
(bb) posting such notice in a conspicuous place in the
tribal headquarters or administration building (or such
other tribal building determined by the Secretary to be
most appropriate for giving public notice) of the Indian
tribe with jurisdiction over the parcel of land, if any;
and
(cc) in addition to the foregoing, in the Secretary's
discretion, publishing notice in any other place or means
that the Secretary determines to be appropriate.
(G) Review of comments on appraisal
(i) In general
After reviewing and considering comments or information
timely submitted by any owner of an interest in the parcel in
response to the notice required under subparagraph (F), the
Secretary may, consistent with the provisions of this chapter
for establishing fair market value -
(I) order a new appraisal; or
(II) approve the appraisal;
provided that if the Secretary orders a new appraisal under
subclause (I), notice of the new appraisal shall be given as
specified in clause (ii).
(ii) Notice
Notice shall be given -
(I) in accordance with subparagraph (H), where the new
appraisal results in a value of the land that is equal to
or greater than that of the earlier appraisal; or
(II) in accordance with subparagraph (F)(ii), where the
new appraisal results in a lower valuation of the land.
(H) Notice to owners of approval of appraisal and right to
appeal
Upon making the determination under subparagraph (G), the
Secretary shall provide to the Indian tribe with jurisdiction
over the subject land and to all persons who submitted written
comments on or objections to the proposed partition or
appraisal, a written notice to be served on such tribe and
persons by certified mail. Such notice shall state -
(i) the results of the appraisal;
(ii) that the owner has the right to review a copy of the
appraisal upon request;
(iii) that the land will be sold for not less than the
appraised value, subject to the consent requirements under
paragraph (2)(D);
(iv) the time of the sale or for submitting bids under
subparagraph (I);
(v) that the owner has the right, under the Secretary's
regulations governing administrative appeals, to pursue an
administrative appeal from -
(I) the determination that the land may be partitioned by
sale under the provisions of this section; and
(II) the Secretary's order approving the appraisal;
(vi) the date by which an administrative appeal must be
taken, a citation to the provisions of the Secretary's
regulations that will govern the owner's appeal, and any
other information required by such regulations to be given to
parties affected by adverse decisions of the Secretary;
(vii) in cases where the Secretary determines that any
person's undivided trust or restricted interest in the parcel
exceeds $1,500 pursuant to paragraph (2)(D)(iii), that the
Secretary has authority to consent to the partition on behalf
of undetermined heirs of trust or restricted interests in the
parcel and owners of such interests whose whereabouts are
unknown; and
(viii) any other information the Secretary deems to be
appropriate.
(I) Sale to eligible purchaser
(i) In general
Subject to clauses (ii) and (iii) and the consent
requirements of paragraph (2)(D), the Secretary shall, after
providing notice to owners under subparagraph (H), including
the time and place of sale or for receiving sealed bids, at
public auction or by sealed bid (whichever of such methods of
sale the Secretary determines to be more appropriate under
the circumstances) sell the parcel of land by competitive bid
for not less than the final appraised fair market value to
the highest bidder from among the following eligible bidders:
(I) The Indian tribe, if any, with jurisdiction over the
trust or restricted interests in the parcel being sold.
(II) Any person who is a member, or is eligible to be a
member, of the Indian tribe described in subclause (I).
(III) Any person who is a member, or is eligible to be a
member, of an Indian tribe but not of the tribe described
in subclause (I), but only if such person already owns an
undivided interest in the parcel at the time of sale.
(IV) Any lineal descendent of the original allottee of
the parcel who is a member or is eligible to be a member of
an Indian tribe or, with respect to a parcel located in the
State of California that is not within an Indian tribe's
reservation or not otherwise subject to the jurisdiction of
an Indian tribe, who is a member, or eligible to be a
member, of an Indian tribe or owns a trust or restricted
interest in the parcel.
(ii) Right to match highest bid
If the highest bidder is a person who is only eligible to
bid under clause (i)(III), the Indian tribe that has
jurisdiction over the parcel, if any, shall have the right to
match the highest bid and acquire the parcel, but only if -
(I) prior to the date of the sale, the governing body of
such tribe has adopted a tribal law or resolution reserving
its right to match the bids of such nonmember bidders in
partition sales under this subsection and delivered a copy
of such law or resolution to the Secretary; and
(II) the parcel is not acquired under clause (iii).
(iii) Right to purchase
Any person who is a member, or eligible to be a member, of
the Indian tribe with jurisdiction over the trust or
restricted interests in the parcel being sold and is, as of
the time of sale under this subparagraph, the owner of the
largest undivided interest in the parcel shall have a right
to purchase the parcel by tendering to the Secretary an
amount equal to the highest sufficient bid submitted at the
sale, less that amount of the bid attributable to such
owner's share, but only if -
(I) the owner submitted a sufficient bid at the sale;
(II) the owner's total undivided interest in the parcel
immediately prior to the sale was -
(aa) greater than the undivided interest held by any
other co-owners, except where there are 2 or more co-
owners whose interests are of equal size but larger than
the interests of all other co-owners and such owners of
the largest interests have agreed in writing that 1 of
them may exercise the right of purchase under this
clause; and
(bb) equal to or greater than 20 percent of the entire
undivided ownership of the parcel;
(III) within 3 days following the date of the auction or
for receiving sealed bids, and in accordance with the
regulations adopted to implement this section (if any), the
owner delivers to the Secretary a written notice of intent
to exercise the owner's rights under this clause; and
(IV) such owner tenders the amount of the purchase price
required under this clause -
(aa) not more than 30 days after the date of the
auction or time for receiving sealed bids; and
(bb) in accordance with any requirements of the
regulations promulgated under paragraph (5).
(iv) Interest acquired
A purchaser of a parcel of land under this subparagraph
shall acquire title to the parcel in trust or restricted
status, free and clear of any and all claims of title or
ownership of all persons or entities (not including the
United States) owning or claiming to own an interest in such
parcel prior to the time of sale.
(J) Proceeds of sale
(i) Subject to clauses (ii) and (iii), the Secretary shall
distribute the proceeds of sale of a parcel of land under the
provisions of this section to the owners of interests in such
parcel in proportion to their respective ownership interests.
(ii) Proceeds attributable to the sale of trust or restricted
interests shall be maintained in accounts as trust personalty.
(iii) Proceeds attributable to the sale of interests of
owners whose whereabouts are unknown, of undetermined heirs,
and of other persons whose ownership interests have not been
recorded shall be held by the Secretary until such owners,
heirs, or other persons have been determined, at which time
such proceeds shall be distributed in accordance with clauses
(i) and (ii).
(K) Lack of bids or consent
(i) Lack of bids
If no bidder described in subparagraph (I) presents a bid
that equals or exceeds the final appraised value, the
Secretary may either -
(I) purchase the parcel of land for its appraised fair
market value on behalf of the Indian tribe with
jurisdiction over the land, subject to the lien and
procedures provided under section 2213(b) of this title; or
(II) terminate the partition process.
(ii) Lack of consent
If an applicant fails to obtain any applicable consent
required under the provisions of subparagraph (D) by the date
established by the Secretary prior to the proposed sale, the
Secretary may either extend the time for obtaining any such
consent or deny the request for partition.
(3) Enforcement
(A) In general
If a partition is approved under this subsection and an owner
of an interest in the parcel of land refuses to surrender
possession in accordance with the partition decision, or
refuses to execute any conveyance necessary to implement the
partition, then any affected owner or the United States may -
(i) commence a civil action in the United States district
court for the district in which the parcel of land is
located; and
(ii) request that the court issue an order for ejectment or
any other appropriate remedy necessary for the partition of
the land by sale.
(B) Federal role
With respect to any civil action brought under subparagraph
(A) -
(i) the United States -
(I) shall receive notice of the civil action; and
(II) may be a party to the civil action; and
(ii) the civil action shall not be dismissed, and no relief
requested shall be denied, on the ground that the civil
action is against the United States or that the United States
is a necessary and indispensable party.
(4) Grants and loans
The Secretary may provide grants and low interest loans to
successful bidders at sales authorized by this subsection,
provided that -
(A) the total amount of such assistance in any such sale
shall not exceed 20 percent of the appraised value of the
parcel of land sold; and
(B) the grant or loan funds provided shall only be applied
toward the purchase price of the parcel of land sold.
(5) Regulations
The Secretary is authorized to adopt such regulations as may be
necessary to implement the provisions of this subsection. Such
regulations may include provisions for giving notice of sales to
prospective purchasers eligible to submit bids at sales conducted
under paragraph (2)(I).