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 containing 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 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 Secretary 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 approved 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 subsequently discovered that there has been fraud in connection with the execution or procurement of the will the Secretary of the Interior is authorized within one year after the death of the testator to cancel the approval of the will, and the property of the testator shall thereupon descend or be distributed in accordance with the laws of the State wherein the property is located: Provided further, That the approval of the will and the death of the testator shall not operate to terminate the trust or restrictive period, but the Secretary of the Interior may, in his discretion, 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 restrictions, 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.
Notes of Decisions
Tooahnippah v. Hickel, 397 U.S. 598 (1970).
· cites it 28× “" The beneficiaries under the will sought to have it approved by the Secretary of the Interior, as required by 25 U. S. C. § 373 . [3] A hearing was had before an Examiner of Inheritance, Office of the Solicitor, Department of the Interior.”
Hodel v. Irving, 481 U.S. 704 (1987).
· cites it 2× “856 , 25 U. S. C. § 373 . Those regulations generally served to protect Indian ownership of the allotted lands.”
Hanson v. Hoffman, 113 F.2d 780 (10th Cir. 1940).
· cites it 8× “678 , 25 U.S.C.A. § 373 , and regulations adopted and approved by the Secretary of the Interior on June 19, 1923, executed a pretended will by thumbprint, bequeathing and devising all his estate, real, personal, and mixed, to his wife, Agnes, and his daughter, Jean.”
Babbitt v. Youpee, 519 U.S. 234 (1997).
· cites it 2× “856 , codified as amended, 25 U. S. C. § 373 . The allotment policy "quickly proved disastrous for the Indians.”
Joe Hayes v. Fred A. Seaton, Sec'y of the Interior, 270 F.2d 319 (D.C. Cir. 1959).
· cites it 3× “It provides (1) that the Secretary may prescribe regulations in accordance with which Indians may make wills disposing of trust property, and (2) that “no will so executed shall be valid * * * until it shall have been approved by the Secretary * * *.”
Wapato Heritage LLC v. Sandra Evans, 430 F. App'x 557 (9th Cir. 2011).
· cites it 2× “See 25 U.S.C. § 373 (requiring federal approval of probate distribution of Indian money and property); see also In re Estate of Covington, 450 F.”
Sankey v. United States, 22 Cl. Ct. 743 (Ct. Cl. 1991).
“Allottees may dispose of their lands in wills approved of by the Secretary of the Interior, see 25 U.S.C. § 373 , but most fail to execute wills.”
Akers v. Hodel, 871 F.2d 924 (10th Cir. 1989).
· cites it 4× “1660, 1661 governs; if instead Congress would consider him to be enrolled as Pawnee, both sides agree that 25 U.S.C. § 373 is the applicable provision.”
Attocknie v. Udall, 261 F. Supp. 876 (W.D. Okla. 1966).
· cites it 2× “Of particular pertinence to the question now under consideration is 25 CFR 15.12, the provisions of which are as follows: “No action shall be taken on the will of a deceased Indian until testimony shall have been taken as to the testamentary capacity of the decedent to execute…”
Homovich v. Chapman, Sec'y of the Interior, 191 F.2d 761 (D.C. Cir. 1951).
“Whether the court should set aside an agency action founded upon the exercise of discretion and judgment is, as we have said, a totally different question from whether the court may review the action for purposes of determining its validity.”
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