Indian Trust Management Reform, 45174-45244 [06-6622]
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Federal Register / Vol. 71, No. 152 / Tuesday, August 8, 2006 / Proposed Rules
SUMMARY: The Bureau of Indian Affairs
(BIA) and the Office of the Secretary
propose to amend several of their
regulations related to Indian trust
management to further fulfill the
Secretary’s fiduciary responsibilities to
federally recognized tribes and
individual Indians and to meet the
Indian trust management policies
articulated by Congress in the Indian
Land Consolidation Act (ILCA), as
amended by the American Indian
Probate Reform Act of 2004 (AIPRA).
These amendments address Indian trust
management issues in the areas of
probate, probate hearings and appeals,
tribal probate codes, life estates and
future interests in Indian land, the
Indian land title of record; and
conveyances of trust or restricted land.
There is also an ‘‘Application for
Consolidation by Sale’’ form that is
associated with one of these
amendments.
You may submit comments,
identified by the number 1076–AE59, by
any of the following methods:
—Federal rulemaking portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
—Web site at https://
www.doitrustregs.com.
—E-mail: Michele_F_Singer@ios.doi.gov.
Include the number 1076–AE59 in the
subject line of the message.
—Fax: (202) 208–5320. Include the
number 1076–AE59 in the subject line
of the message.
—Mail: U.S. Department of the Interior,
1849 C Street, NW., Mail Stop 4141,
Washington, DC 20240
—Hand delivery: Michele Singer, U.S.
Department of the Interior, 1849 C
Street, NW., Washington, DC 20240.
Comments on the information
collection burdens, including comments
on or requests for copies of the
‘‘Application for Consolidation by Sale’’
form, are separate from those on the
substance of the rule. Send comments
on the information collection burdens
to: Interior Desk Officer 1076–AE59,
Office of Management and Budget, email:
oira_docket@omb.eop.gov; or 202/395–
6566 (fax). Please also send a copy of
your comments to BIA at the location
specified under the heading ADDRESSES.
FOR FURTHER INFORMATION CONTACT:
Michele Singer, Counselor to the
Assistant Secretary—Indian Affairs,
Department of the Interior, Bureau of
Indian Affairs, 1849 C Street NW., Mail
Stop 4141, Washington, DC 20240,
telephone (202) 273–4680.
SUPPLEMENTARY INFORMATION:
Please submit your comments by
October 10, 2006.
I. Statutory Authority
II. Background
A. History of the Rule
ADDRESSES:
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Parts 15, 18, 150, 152, and 179
Office of the Secretary
43 CFR Parts 4 and 30
RIN 1076–AE59
Indian Trust Management Reform
Bureau of Indian Affairs, Office
of the Secretary, Interior.
AGENCY:
ACTION:
Proposed rule.
DATES:
25 CFR part 15 ...............................
25 CFR part 18 ...............................
NEW-Tribal Probate Codes ............
25 CFR part 150 .............................
25 CFR part 152 .............................
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25 CFR part 179 .............................
43 CFR part 4 .................................
43 CFR part 30 ...............................
NEW—Probate Hearing Procedures.
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B. The Need for this Proposed Rulemaking
C. Development of Proposed Reguatory
Language
D. Status of Other Indian Trust
Management Reform Regulations
III. Overview of Proposed Rule
IV. Part-by-Part Analysis
A. 25 CFR Part 15
B. 25 CFR Part 18
C. 25 CFR Part 150
D. 25 CFR Part 152
E. 25 CFR Part 179
F. 43 CFR Part 4
G. 43 CFR Part 30
V. Public Comments
A. Comments Received Prior to This
Publication
B. Directions for Submitting Comments
VI. Procedural Requirements
A. Regulatory Planning and Review
(Executive Order 12866)
B. Regulatory Flexibility Act
C. Small Business Regulatory Enforcement
and Fairness Act
D. Unfunded Mandates Reform Act of 1995
E. Governmental Actions and Interference
with Constitutionally Protected Property
Rights (Executive Order 12630)
F. Federalism (Executive Order 13132)
G. Civil Justice Reform (Executive Order
12988)
H. Paperwork Reduction Act
I. National Environmental Policy Act
(NEPA)
J. Government-to-Government
Relationships with Tribes (Executive
Order 13175)
K. Energy Effects (Executive Order 13211)
I. Statutory Authority
Regulatory amendments to these parts are
proposed under the general authority of the
Trust Fund Management Reform Act of 1994,
25 U.S.C. 4021 et seq., and the Indian Land
Consolidation Act of 2000 (ILCA) as
amended by the American Indian Probate
Reform Act of 2004 (AIPRA), 25 U.S.C. 2201
et seq. The following table provides
additional statutory authority specific to each
CFR part.
5 U.S.C. 301; 25 U.S.C. 2, 9, 372–74, 410; 44 U.S.C. 3101 et seq.
5 U.S.C. 301; 25 U.S.C. 2, 9, 372–74, 410; 44 U.S.C. 3101 et seq.; Pub. L. 108–374 (American Indian
Probate Reform Act of 2004).
Act of June 30, 1834 (4 Stat. 738; 25 U.S.C. 9). Act of July 26, 1892 (27 Stat. 272; 25 U.S.C. 5). Reorganization Plan No. 3 of 1950 approved June 20, 1949 (64 Stat. 1262). (Act of April 26, 1906 (34 Stat.
137); Act of May 27, 1908 (35 Stat. 312); Act of August 1, 1914 (38 Stat. 582, 598) deals specifically
with land records of the Five Civilized Tribes. Act of February 14, 1920 (41 Stat. 415) amended
March 1, 1933 (47 Stat. 1417; 25 U.S.C. 413); 5 U.S.C. 552a; and 31 U.S.C. 9701.
R.S. 161; 5 U.S.C. 301. Interpret or apply sec. 7, 32 Stat. 275, 34 Stat. 1018, sec. 1, 35 Stat. 444, sec. 1
and 2, 36 Stat. 855, as amended, 856, as amended, sec. 17, 39 Stat. 127, 40 Stat. 579, 62 Stat. 236,
sec. 2, 40 Stat. 606, 68 Stat. 358, 69 Stat. 666: 25 U.S.C. 378, 379, 405, 404, 372, 373, 483, 355, unless otherwise noted.
86 Stat. 530; 86 Stat. 744; 94 Stat. 537; 96 Stat. 2515; 25 U.S.C. 2, 9, 372, 373, 487, 607, and 2201–11;
Pub. L. 108–374 (American Indian Probate Reform Act of 2004).
5 U.S.C. 301; 43 U.S.C. 1201.
5 U.S.C. 301; 43 U.S.C. 1201.
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Federal Register / Vol. 71, No. 152 / Tuesday, August 8, 2006 / Proposed Rules
II. Background
This rulemaking is a result of a
collaborative, multi-year undertaking to
identify a comprehensive strategy for
improving Indian trust management.
The Department of the Interior manages
Indian trust assets in accordance with
its fiduciary trust relationship with
tribes and individual Indians. The term
‘‘tribes’’ is used in this preamble to refer
to Federally recognized tribes. The
purpose of today’s proposed rulemaking
is to allow the Department of the
Interior to better meet its fiduciary trust
responsibilities and to carry out the
policies established by Congress to
strengthen tribal sovereignty. This
rulemaking will provide the Department
with the tools to more effectively and
consistently manage trust assets and
better serve its trust beneficiaries (i.e.,
Indian tribes and individual Indians).
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A. History of the Rule
The Department of the Interior has
been examining ways to better meet its
fiduciary trust responsibilities since
1994, when Congress passed the Trust
Fund Management Reform Act.
Throughout this time, the Department
has sought the participation and input
of tribal leaders and individual Indian
beneficiaries to identify ways in which
the Department can better serve its
beneficiaries.
In July 2001, the Secretary of the
Interior (Secretary) issued Secretarial
Orders 3231 and 3232. These orders
created the Office of Historical Trust
Accounting (OHTA) to perform
historical accounting of trust assets and
created a temporary Office of the Indian
Trust Transition (OITT), which was
charged with reorganizing the agency to
better meet beneficiaries’’ needs. These
Secretarial Orders also stated the
Secretary’s policy to take a more
coordinated approach to ensure the
overall success of trust reform.
In accordance with this policy, the
Department reevaluated its approach to
trust reform and, in January 2002,
embarked on an examination and
reengineering of its Indian trust
management processes. This effort
differed from prior trust reform efforts
because it took a comprehensive
approach to trust reform, linking
individual trust reform issues to an
overall strategy. To ensure that the
strategy fully considered tribal
concerns, the Department assembled a
Joint Task Force of tribal representatives
and representatives from the
Department.
From members of this Joint Task
Force, a subcommittee of both tribal
representatives and Department
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representatives was formed. The
subcommittee met regularly to review
the ‘‘As-Is’’ processes of the way major
trust functions were performed at that
time. From this ‘‘As-Is’’ model, the
subcommittee identified business goals
and objectives the Department should
meet in fulfilling its trust
responsibilities and providing improved
services to trust beneficiaries. It then
developed the overall strategy to meet
those goals and objectives, documented
as the Comprehensive Trust
Management (CTM) plan.
The CTM laid the groundwork for
trust reform by providing strategic
direction for development of the ‘‘ToBe’’ model, known as the Fiduciary
Trust Model (FTM). The FTM redesigns
trust processes into more efficient,
consistent, integrated, and fiscally
responsible business processes. In
developing the FTM, the team
incorporated years of Departmental
consultation with tribes. The
Department adopted the FTM in
December 2004 to guide trust reform.
Together with Indian affairs policies,
the FTM forms the basis of today’s
rulemaking.
B. The Need for This Proposed
Rulemaking
Since adopting the FTM, the
Department has formed an FTM
Implementation Team with tribal
representatives. The FTM
Implementation Team is leading
internal organizational changes for
improving performance and
accountability in management of the
trust. At the beginning of the
reengineering process, the Joint Task
Force had anticipated that regulatory
changes would be necessary to fully
implement trust reform. The Team has
since determined, and the Secretary has
confirmed, that certain regulatory
changes are indeed needed to enable the
Department to fully implement the
FTM. Today’s proposed rule includes
many of these necessary regulatory
changes.
Additionally, Congress enacted the
American Indian Probate Reform Act of
2004. AIPRA amends ILCA to better
meet the trust reform goals for land
consolidation articulated in ILCA.
Regulatory changes authorized by
AIPRA are included in this proposed
rule.
C. Development of Proposed Regulatory
Language
This proposed rulemaking
encompasses tribal and Departmental
representatives’ efforts on the Joint Task
Force, as well as the efforts of tribal
representatives who have provided
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comments throughout the trust reform
process. These efforts guided in-house
teams in drafting the specific regulatory
language included in this proposed
rulemaking. The in-house teams
consisted of Federal personnel from
Department headquarters and the field,
and included program officers and
Department attorneys possessing
extensive expertise in probate, land
titles and records, acquisition and
conveyance, leasing and grazing, and
administrative appeals. On December
27, 2005, the Department shared
advance copies of the proposed
regulatory language (identified as
‘‘preliminary drafts’’ throughout this
preamble) with leaders of each
Federally recognized tribal government,
as well as additional contacts in Indian
country, for their input and
recommendations. The Department has
also presented the preliminary drafts
and obtained the input of tribes at two
formal consultation meetings: one in
Albuquerque, New Mexico on February
14–15, 2006, and one in Portland,
Oregon on March 29, 2006. Comments
received during these consultations and
in the time leading up to this
publication have identified several
issues that the Department considered
in revising the preliminary drafts for
publication as a proposed rule. In
accordance with the government-togovernment relationship with tribes,
formal consultations are also being
scheduled to take place during the
comment period that follows this
publication in the Federal Register to
facilitate an informed final rule. See
Section IV, Public Comments, for details
on upcoming consultations.
D. Status of Other Indian Trust
Management Reform Regulations
The Department is also developing
regulatory amendments to land
acquisitions (25 CFR part 151), leasing
(25 CFR part 162), and grazing (25 CFR
part 166), and developing draft
regulatory language addressing trust
fund accounting and appeals (new CFR
part), unclaimed moneys/whereabouts
unknown (new CFR part), and fees for
service (new CFR part). Based on input
received during the February 14–15,
2006, Albuquerque tribal consultation
session, the Department has determined
that these regulations require additional
work before publication as a proposed
rule. The Department plans to
promulgate these additional regulations
at some point in the future. Together,
these regulatory changes will provide
the Department with the tools it needs
to better serve beneficiaries and will
standardize procedures for consistent
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execution of fiduciary responsibilities
across BIA Regions.
III. Overview of Proposed Rule
The proposed rule amends various
parts of the CFR to further implement
Indian trust management reform and
meet the policies expressed by Congress
in ILCA, as amended by AIPRA.
Together, these amendments form an
integrated approach to Indian trust
management related to probate, land
records and title documents, and
conveyances that allow the Department
to better meet the needs of its
beneficiaries.
The Department has revised many of
these regulations, in accordance with
the Plain Language Initiative (63 FR
31885 (June 10, 1998)) to facilitate ease
of use and public comprehension.
In addition to making plain language
revisions, amendments revise the
regulations to:
• Incorporate AIPRA changes to
probate: AIPRA created a uniform
probate code to standardize intestate
succession rules for trust and restricted
property. The uniform probate code
reinforces tribal sovereignty by
eliminating the application of state laws
in the probate of trust and restricted
assets while deferring to approved tribal
probate codes. AIPRA also established
new mechanisms for consolidating
fractionated interests at probate and
through sale of highly fractionated
tracts. The proposed amendments to
probate regulations would implement
AIPRA’s provisions by requiring the
additional information needed to
determine heirs and devisees to be
included in the probate file, and by
establishing the procedures for
directional disclaimers, purchases at
probate and consolidation agreements.
These regulations continue to refer all
probate cases to OHA. The amendments
streamline the OHA process by
shortening deadlines to more reasonable
time periods. Amendments to life estate
provisions reflect AIPRA’s change in the
valuation of a life estate to be ‘‘without
regard to waste’’ and base the valuation
on the four-year average Single Life
Factor used by the U.S. Internal
Revenue Service in Table S of the 7520
rate schedule, without regard to gender.
• Promote consolidation (reduce
fractionation) of interests: Allotments
owned by Indians have become
increasingly fractionated with the
probate of each generation, resulting in
the division of the allotment into
smaller and smaller interests. These
amendments meet the policy expressed
by Congress to reduce fractionation (i.e.,
the exponential increase in the number
of ownership interests in a given parcel
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of land) of tribal and individual Indian
interests in trust and restricted property
through the use of several tools. These
tools include the opportunities for tribes
to establish a tribal land consolidation
plan; purchase interests in land within
their respective jurisdictions when
offered for negotiated sale, gift, or
exchange; make a tribal tract purchase
(i.e., obtain fractionated interests of nonconsenting trust and restricted owners
under certain circumstances); and unify
ownership and consolidate interests in
a tract through partition. The
amendments allow both tribes and
individual Indians to obtain highly
fractionated interests through a new
mechanism, created by AIPRA:
consolidation by sale (called ‘‘partition
of highly fractionated lands’’ in AIPRA).
Additionally, the new AIPRA
mechanisms being incorporated in
probate regulations will offer
opportunities to reduce fractionation
through the distribution of probate
property.
• Improve service to beneficiaries:
Amendments to the Land Titles and
Records Office (LTRO) regulations will
update and standardize LTRO title
practices and recordation to ensure the
Secretary is able to accurately track and
record accounting of trust and restricted
interest owners, allowing the Secretary
to better serve the beneficiaries.
Amendments to the probate process are
aimed at facilitating the process to
reduce the probate backlog and better
serve beneficiaries. By clarifying the
requirements and processes for probate,
approval of tribal probate codes,
obtaining LTRO services and products,
and conveying trust and restricted
property, the Department improves
communication and transparency,
allowing better service to beneficiaries.
The Department is committed to fully
explaining both the purpose and
intended effects of these regulations in
this preamble. More detailed
explanations of each part are provided
below, followed by summaries of
comments received during tribal
consultations on the preliminary drafts
of these regulations. The Department
welcomes any questions or comments
requesting clarification of these parts, as
well as additional comments.
Additionally, upon finalization of any of
these regulations, the Department plans
to develop training and other
explanatory materials, where
appropriate, to facilitate transparency in
implementation of these regulations.
IV. Part-by-Part Analysis
The following sections provide a
description of the amendments with
respect to each CFR part and provide
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distribution tables listing what current
CFR sections are proposed for change,
the new (i.e., proposed) CFR section,
and a description of the proposed
changes. Because this proposed rule
incorporates changes made to the
preliminary drafts, which were
distributed to tribes in December 2005,
the following part-by-part analysis
includes a discussion of major changes
made to each preliminary draft of the
CFR part in response to comments.
A. 25 CFR Part 15
The purpose of this part is to describe
the authorities, policies and procedures
the BIA (or tribe that has contracted or
compacted to fulfill probate functions)
uses to prepare a probate file for an
Indian decedent’s trust estate, except for
restricted land derived from allotments
made to members of the Five Civilized
Tribes (Cherokee, Choctaw, Chickasaw,
Creek and Seminole) in Oklahoma.
Amendments to this part revise
several subsections to ensure that the
probate file delivered to OHA for
adjudication is as complete as possible.
By requiring a certification by BIA that
they have examined certain sources of
information and that the file is as
complete as possible based on those
sources of information, the amendments
will prevent multiple transfers of the
probate file between BIA and OHA,
facilitating the process. Additional
changes to the records requirements,
such as deleting the requirement for a
birth certificate, are also intended to
facilitate the probate process.
The amendments ensure that
information is included in the probate
file to determine whether heirs and
devisees meet the AIPRA definition of
‘‘Indian.’’ The amendments also
incorporate definitions regarding
AIPRA’s new methods for consolidating
interests at probate:
• Consolidation agreements, which
are agreements by the decedent’s heirs
and devisees to consolidate their
inherited/devised interests in trust and
restricted land or consolidate their
inherited/devised interests in land with
other interests they already own in trust
and restricted land; and
• Purchase options at probate, which
allow eligible purchasers to purchase or
exchange a decedent’s interest in trust
or restricted land.
Amendments to this part ensure that
the probate file contains information
necessary for implementation of
statutory solutions to fractionation set
out in 43 CFR part 4, which addresses
OHA probate hearings. Part 15
prescribes what must be included in a
probate package and how it will be
compiled.
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Changes From Preliminary Draft
Several tribal commenters questioned
why 25 CFR part 15 and 43 CFR part 4,
which both address the probate process,
are in separate CFR titles. The
Department has determined that
because these two parts address
different agencies—25 CFR part 15
addresses BIA preparation of the
probate file, and 43 CFR part 4
addresses adjudication of the probate
file once OHA receives it from BIA—
these parts are best kept in their
respective titles.
Several commenters suggested that
the definitions in both 25 CFR part 15
and 43 CFR part 4 should track the
definitions as set out in ILCA, as
amended by AIPRA. The Department
has reviewed the regulatory definitions,
and amended them as appropriate to
ensure that they are consistent with
AIPRA and with 43 CFR parts 4, 30.
The Department examined and
changed terms, as appropriate, to ensure
Current citation
consistency with definition of terms in
43 CFR parts 4, 30. The Department also
amended other terminology as a result
of issues raised by tribal commenters:
for example, it changed ‘‘trust financial
assets’’ and ‘‘cash assets’’ to ‘‘trust
personalty’’ to encompass both cash and
securities, and it changed
‘‘beneficiaries’’ to ‘‘devisees,’’ which is
a more precise term including only
those who receive under a will. In
section 15.8, the Department clarified
what is meant by a ‘‘self-proved will.’’
In response to tribal comments, the
Department also significantly amended
section 15.14. In the preliminary draft,
this section had provided that, pending
probate, the Secretary could take
custody and control of the estate and
take any action he or she determined to
be necessary for the benefit of the estate,
including sale of the land. The version
of this section being proposed today
instead provides limited emergency
actions that BIA may take when assets
in an estate may be significantly
New citation
15.1 ................................
15.2 ................................
15.1
15.2
15.3
15.4
15.5
15.6
15.7
15.8
15.9
15.3 ................................
15.10
15.4 ................................
15.11
15.12
15.101 ............................
15.103
What is the purpose of this part?
What terms do I need to know?
Who can make a will disposing of trust or restricted land or trust personalty?
What are the requirements for my will?
Can I revoke my will?
Can my will be deemed revoked by the operation
of the law of any state?
What is a self-proved will?
Can I make my will, codicil, or revocation selfproved?
Do affidavits for my self-proved will, codicil, or
revocation have to be in a certain format?
Will the Secretary probate all the land or assets in
an estate?
How does the probate process work?
What happens if assets in a trust estate may be
diminished or destroyed while the probate is
pending?
How do I begin the probate process?
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15.102 ............................
15.103 ............................
15.104, 15.105 ...............
15.102
15.101
15.105
Who may notify BIA of a death?
When should I notify BIA of a death?
What other documents does BIA need to prepare
a probate file?
15.106 ............................
15.201
15.107 ............................
15.108 ............................
15.107
15.108
Can I get funds from the decedent’s IIM account
for funeral services?
Who prepares a probate file?
If the decedent was not an enrolled member of a
tribe or was a member of more than one tribe,
who prepares the probate file?
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Distribution Table—25 CFR Part 15
The following distribution table
indicates where each of the current
regulatory sections in 25 CFR part 15 is
located in the proposed 25 CFR part 15.
Remarks
Does BIA need a death certificate to prepare a
probate file?
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diminished or destroyed while the
probate is pending. Each of the
emergency actions require a request to
or hearing before OHA, so no unilateral
action may be taken to sell land pending
probate under this provision.
At least one tribal commenter
objected to the last provision in section
15.106 of the preliminary draft, allowing
the Secretary to request any additional
information in support of the probate
file. The Department has deleted the
provision allowing the Secretary to
require additional information in
support of the probate file.
The Department also clarified when
claims against an estate may be filed
and the deadline for filing such claims
in section 15.202.
Title
15.104
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No change.
Additional definitions.
New section.
New section.
New section.
New section.
New section.
New section.
New section.
Clarifies that the Secretary will probate only the
trust or restricted property in an estate.
Administrative changes.
New section.
Clarifies whom to contact at BIA to inform of a
death.
Clarifies that a death certificate should be provided and lists information and documents that
must be provided if no death certificate is available.
Plain language.
Plain language.
Clarifies that certain documents may come from
an authority other than a court. Adds requirement for: orders requiring payment of spousal
support; identification of person or entity in
whose favor an interest is renounced; court
judgments regarding creditor claims; and place
of enrollment and tribal enrollment or census
number of the decedent and potential heirs and
beneficiaries. Deletes requirement for birth certificate.
Plain language.
Incorporates new ‘‘probate staff’’ definition.
Redesignated. Plain language.
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Current citation
New citation
15.106
Title
Remarks
15.201 ............................
15.301
Can a probate case be opened when an owner of
an interest has been absent?
What will BIA do with the documents that I provide?
15.202 ............................
15.202
If the decedent owed me money, how do I file a
claim against the estate?
15.203 ............................
15.302
What items must BIA include in the probate file?
15.301 ............................
15.303
15.401
15.302 ............................
15.402
When is a probate file complete?
What happens after BIA prepares the probate
file?
What happens after the probate file is referred to
OHA?
15.303 ............................
15.403
What happens after the probate decision is
made?
15.401 ............................
15.501
How can I find out the status of a probate?
15.402 ............................
15.502
Who owns the records associated with this part?
15.403 ............................
15.503
15.504
15.505
How must records associated with this part be
preserved?
Who may inspect these records?
What information must tribes provide BIA to complete the probate file?
15.506
How does the Paperwork Reduction Act affect
this part?
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B. 25 CFR Part 18 [NEW]—Tribal
Probate Codes
This new CFR part addresses the
process for obtaining Secretarial
approval of a tribal probate code and
lists factors the Secretary will consider
in reviewing the tribal probate code for
approval. While tribes have had the
authority to adopt their own tribal
probate codes governing descent and
distribution of trust and restricted lands
located within the tribes’ respective
reservations or otherwise subject to the
tribes’ jurisdiction, part 18 clarifies that
a tribe must obtain Secretarial approval
of the code. This part lists the factors
the Secretary will consider in reviewing
a tribal probate code and establishes
when an approved code, repeal, or
amendment becomes effective. Upon
approval, this part requires the tribe to
notify tribal members of the tribal
probate code.
Changes From Preliminary Draft
The Department made several plain
language changes to the preliminary
draft, which has resulted in combining
certain sections and rearranging the
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New section.
Clarifies that BIA will also examine other documents and information (beyond those provided)
to prepare a complete probate file and will
transfer the probate file to OHA.
Adds requirements to provide certain additional
information in support of claim. Changes deadline for filing a claim to the conclusion of the
first hearing rather than 60 days of verification
of death.
Clarifies what the certified inventory of trust or restricted real property should contain. Adds requirements for supporting documents.
New section.
Redesignated. Deletes notification to interested
parties.
Adds provisions describing how BIA will handle
claims it receives after it refers the probate file
to OHA.
Establishes a 30-day time period to file a written
request for de novo review, a request for rehearing with the OHA deciding official, or an
appeal. Establishes that BIA will not pay claims,
transfer title, or distribute assets pending a de
novo review, rehearing, or appeal.
Clarifies that interested parties may contact the
BIA agency or regional office.
Clarifies that records made by or on behalf of the
United States are owned by the United States.
Redesignated. Plain language.
Redesignated. Plain language.
Establishes that tribes must provide certain information when necessary to complete a probate
file.
New section.
sections to some degree. The
Department added a new subsection (b)
to section 18.1 to clarify that a tribal
probate code may provide for a single
heir rule that differs from the one
provided in AIPRA.
The Department also clarified section
18.8(b) (section 18.9 in the preliminary
draft) to provide that a tribal probate
code or amendment will be applied to
the estates of decedents who die on or
after the effective date, rather than the
date of approval, of the tribal probate
code or amendment.
Finally, tribal commenters objected to
section 18.12 of the preliminary draft,
which provided how tribes should
notify their members of a tribal probate
code or amendment, as an inappropriate
incursion into tribal sovereignty. The
Department has deleted this section in
its entirety.
Note: A distribution table is not included
here because these provisions are entirely
new.
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C. 25 CFR Part 150—Indian Land
Record of Title
The LTRO determines, maintains, and
certifies the title status of Indian land
and provides various land title products
and services to individual Indians,
tribes, and other members of the public
for land held in trust or restricted status
by the United States. Trust status means
that title is held by the United States in
trust for the benefit of an individual
Indian or tribe. Restricted status means
ownership of the property is subject to
Federal restrictions against alienation
and/or encumbrance.
The proposed rule replaces 25 CFR
part 150, Land Records and Title
Documents, in its entirety, to provide
clarification of LTRO’s procedures and
increase the ability of the LTRO to
provide services and products to
Indians, tribes, and the public
comparable to those provided by state
and local land records offices. The
changes are described subpart by
subpart, below.
Subpart A of the proposed rule,
Purpose, Definitions, and Public
Information, clarifies that the
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Department will provide access to the
information in the Indian Land Record
of Title to individual Indians, tribes,
and the public, except in those
instances where access would violate
law or policy restricting access to such
records. The definition of ‘‘Indian land’’
is clarified to include only lands in trust
or restricted status and Federal
government-owned land that is under
the jurisdiction of the BIA, and not land
held in fee by Indians or fee land subject
to the rights, occupancy, and use of
Indians.
Subpart B of the proposed rule, The
Indian Land Record of Title Designation
as the Official Record of Indian Land,
designates the Indian Land Record of
Title as the official record of title
instruments affecting Indian land. The
proposed rule clarifies that constructive
notice of the existence of the title
instrument is provided by recording the
instrument in the Indian Land Record of
Title. Recording instruments with other
Federal or state offices does not provide
constructive notice with regard to
Indian land.
Subpart C of the proposed rule, LTRO
Procedures and Requirements to Record
Instruments in the Indian Land Record
of Title, designates the LTRO as the
organization within the Federal
government that has the responsibility
to maintain the Indian Land Record of
Title. This subpart describes the LTRO
process for receiving and recording title
and the process for correcting an error
or omission in an LTRO product or
service.
Subpart D of the proposed rule,
Services and Products of the LTRO,
describes the types of services and
products offered by the LTRO. Subpart
D also proposes charging fees to certain
parties for the services and products
provided by LTRO. The proposed fees
implement the authority contained in 25
U.S.C. 413 and address a Congressional
directive, in 31 U.S.C. 9701, for agencies
to begin charging fees that are fair and
reasonable based upon the value of the
service provided by the Federal office.
Under 25 U.S.C. 14b, the Secretary may
order that such funds be directed to the
appropriation account for the LTRO. A
fee schedule will be published as a
notice separate from this proposed rule.
The proposed rule specifies exceptions
to the fee.
These proposed provisions will
provide a greater benefit to individual
Indians, tribes, and the public through
clarification of LTRO procedures and
will improve LTRO’s ability to serve
beneficiaries.
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Changes From Preliminary Draft
Since distribution of the preliminary
draft, the Department made several
changes to part 150. For example, the
Department added cross-references to 43
CFR part 30 in proposed sections
150.206 and 150.207, relating to
corrections of final probate records. The
proposed part 150 also moves two
sections regarding how to notify the
LTRO of an error or omission in a
service or product from subpart D to
subpart C, for clarity. (See proposed
section 150.208). The Department
deleted the section in the preliminary
draft, ‘‘What certified products does the
LTRO produce,’’ and added the section,
‘‘What services and products may I
order from the LTRO.’’ Additional
changes and issues are discussed below.
Terminology: The Department added
language to clarify several definitions,
including ‘‘interest,’’ ‘‘Land Titles and
Records Office,’’ ‘‘title,’’ and ‘‘title
instrument.’’ The Department also
rewrote the definition for ‘‘tribe’’ to be
consistent with existing regulatory
definitions for this term.
Throughout the rule, the Department
has modified the terminology to clarify
that the rights of the individual
beneficiary and tribe relate to an interest
in trust (see also 25 CFR part 179).
Effect on Tribes that Compact or
Contract LTRO Functions: Several tribal
commenters requested clarification on
how this rule affects tribes that perform
LTRO functions under a contract or
compact. Records maintained by tribes
under such a contract or compact are
part of the Indian Land Record of Title
and must be maintained under the same
standards and policies. As such, the
regulation includes compact and
contract tribes under the definition of
the ‘‘Land Titles and Records Office’’ for
grammatical and textual convenience
purposes. The inclusion of compact and
contract tribes under this definition is
not intended to reflect a limitation on
the sovereignty of these tribes. Certain
functions performed by the LTRO are
inherently Federal functions and can
only be performed by a government
agency. The inclusion of the compact
and contract tribes in this definition is
not intended to authorize any such tribe
to perform any inherently Federal
function.
Access to the Indian Land Record of
Title: Several Indian commenters raised
the issue of access to LTRO information.
Specifically, these commenters pointed
out that they are being denied access to
LTRO information, sometimes under the
auspices of the Privacy Act. The rule
clarifies that the Indian Land Record of
Title is a public record but that access
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is subject to the Privacy Act, Freedom
of Information Act, and other law or
policy restricting access. In some
instances, portions of a copy of the title
instruments must be redacted under the
Privacy Act to eliminate personal
information not otherwise included in
the Indian Land Record of Title.
Additionally, the Department may
restrict access to reports prepared for
the Secretary. The LTRO performs
functions other than entering
information into the Indian Land Record
of Title and providing copies of maps
and title instruments—the LTRO also
takes the information from the record,
reviews and examines and draws
conclusions about it in preparation of a
report. Where the LTRO prepares a
report for the benefit of the Secretary,
the Secretary has the discretion to
restrict access to the report. For
example, the public may not obtain a
copy of the Probate Inventory Report
until OHA opens the probate case.
While access to the Indian Land Record
of Title may be restricted by the
Freedom of Information Act, Privacy
Act, or other law or policy, the
Department believes that in most cases,
neither law or policy will restrict access
to these records by individual Indians or
tribes. Generally, information included
in the Indian Land Record of Title will
be available to the public without
restriction. The Department has also
clarified that owners of an interest in
trust or restricted land within the same
reservation, the tribe or any person that
is leasing, using, or consolidating, or is
applying to lease, use, or consolidate,
such trust or restricted land or the
interest in trust or restricted lands may
obtain the following information
without regard to the Privacy Act and
any exemption contained in the
Freedom of Information Act: The names,
mailing addresses, information on the
location of the parcel, and percentage of
the parcel owned by each individual.
Who Approves Title Instruments: The
Department has deleted as unnecessary
the section regarding who the Federal
officials are that approve title
instruments.
Fees: Based on input received on the
preliminary drafts, the Department
recognizes that there is strong
opposition to requiring Indians and
tribes to pay for LTRO services and
products. Several tribal commenters
also expressed a preference for charging
fees exclusively to non-Indians because
they believe that providing LTRO
products and services to non-Indians
without charge burdens the LTRO and
diverts monies from other Indian and
tribal programs. The Department
welcomes continued feedback on the
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proposal for charging fees for LTRO
products and services. The Department
will continue to review ways to
maximize the efficiency and
effectiveness of the products and
services provided by the LTRO and
consider whether charging fees can
assist with this effort. The Department
has removed the fee schedule from the
text of the regulation and will publish
it in a separate notice. This will allow
the Department to revise the fees
without having to amend the rule.
LTRO Response Time: During tribal
consultations, several tribal commenters
expressed their frustration at what they
Current citation
characterized as the slowness of the
LTRO in responding to requests to
provide services and products. The
Department is currently undergoing
implementation of a technological
system that will provide a centralized
database of the Indian Land Record of
Title. It is the Department’s belief that
this system will increase the LTRO’s
ability to respond to requests for
products and services in a more timely
manner. Several tribal commenters
suggested imposing timelines on the
LTRO to respond to requests. Due to the
complexity and variety of title
instruments and reports generated from
New citation
What is the purpose of this part?
150.2 .................
150.2
150.4
What terms do I need to know?
Do I have to be an Indian or a tribe to obtain
products or services from the Lands Titles
and Records Office?
Must all title instruments affecting Indian land
be recorded in the Indian Land Record of
Title?
150.101
150.102
150.3 .................
150.201
Do I have to check with any other governmental
office to find title instruments to Indian land?
Who maintains the Indian Land Record of Title?
150.4 .................
150.202
Where is the LTRO located?
150.5 .................
150.6 .................
........................................
150.203
.............................................................................
Who submits the title instruments for recording?
150.204
What does the LTRO do with the instruments
that it receives?
What are the minimum requirements for recording a title instrument?
What if the LTRO discovers a defect or error in
a document?
What if a defect or error in a final probate
record cannot be corrected?.
150.205
150.206
150.207
150.208
150.209
150.210
150.211
150.301
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150.302
150.303
150.304
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The following distribution table
indicates where each of the current
regulatory sections in 25 CFR part 150
is located in the proposed 25 CFR part
150.
Remarks
150.1
150.8 .................
Distribution Table—25 CFR Part 150
Title
150.1 .................
150.7 .................
the information in the Indian Land
Record of Title, the Department is
unable to establish a baseline time
period. Additionally, the Department
believes that establishing time frames
within this regulation would limit the
flexibility to amend those time frames to
reflect changes in processes.
Jkt 208001
How do I correct an error or omission in a title
instrument or LTRO product or service?
What instruments qualify for recording in with
the LTRO?
Does the LTRO maintain the original title instruments?
May I obtain a copy of the title instrument from
the LTRO?
What services and products may I order from
the LTRO?
How do I order services and products from the
LTRO?
Does BIA charge fees for any of the services
provided by, or products produced by, the
LTRO?
What will the LTRO do if the instrument contains information that is privileged or protected?
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Clarifies purpose by expanding on the services
and products LTRO provides.
Adds several definitions for clarification.
New section.
Designates the Indian Land Record of title as
the official record of title instruments affecting
Indian land. Clarifies that recording with the
Indian Land Record of Title serves as constructive notice that the title instrument exists.
Clarifies that the Indian Record of Land Title is
the source of all recorded instruments.
Establishes the LTRO as the office responsible
for maintaining the Indian Land Record of
Title.
Indicates that the LTRO has locations throughout the United States, and that Bureau offices
maintain contact information.
Deleted.
Clarifies that BIA and other government offices
may submit title documents for recording. Deletes specific reference to the Administrative
Law Judge submitting probate documents.
Restates the steps LTRO takes when it receives documents.
Clarifies requirements for recording.
Specifies LTRO procedures to address defects
or errors discovered after recording.
Restates requirement for LTRO notification to
deciding official for non-clerical errors in probate records. Establishes that the corrected
document will be filed in the Indian Land
Record of Title. Deletes reference to ‘‘Superintendent’’ and Administrative Law Judges.
New section.
New section.
New section.
New section.
New section.
Discusses how to order any of LTRO’s services
and products.
New section.
New section.
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Current citation
New citation
Title
150.305
........................................
150.212
150.11 ...............
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150.9 .................
150.10 ...............
150.3
D. 25 CFR Part 152—Conveyances
This part establishes the authorities,
policy, and procedures governing the
conveyance of trust or restricted land.
Amendments reorganize this part to
clarify the different procedures and
requirements applicable to each type of
conveyance. The reorganized sections
incorporate statutory solutions aimed at
reducing fractionation of interests. One
such solution, consolidation by sale, is
newly established by AIPRA.
Consolidation by sale allows one or
more eligible bidders to consolidate
highly fractionated land by buying the
highly fractionated interests at fair
market value through a sale conducted
by the Secretary. The amendments also:
• Provide instances where consent of
the trust or restricted co-owner is not
required to convey a fractional interest,
making it easier to consolidate interests;
• Allow conveyance of land within a
tribe’s jurisdiction without tribal
consent where the grantor owns 100%
of the tract;
• Allow tribes to purchase fractional
interests of non-consenting trust and
restricted owners at fair market value
(tribal tract purchases); and
• Clarify that the Secretary will have
a lien on income derived from any
interest purchased for a tribe under the
Indian Land Consolidation program in
the amount of the purchase price, until
the lien is satisfied or removed by the
Secretary.
The reorganization divides this part
into various subparts. Proposed subpart
A, General Provisions, provides relevant
definitions, describes to whom the
Secretary will provide ownership
information related to conveyance in
this part, and establishes the scope of
the regulations.
Subpart B, Sales and Exchanges of
Tribal Trust or Restricted Land,
addresses sales and exchanges of tribal
land pursuant to an approved tribal
consolidation plan and certain
exchanges of tribal land. This subpart
describes what a tribal consolidation
plan is, how to obtain approval of such
a plan, and how to obtain approval of
a sale or exchange in the absence of
tribal consolidation plan.
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Remarks
How does the Paperwork Reduction Act affect
this part?
.............................................................................
Is there any benefit of obtaining a certified copy
of the title?
When can I see land and title information from
the Indian Land Record of Title?
Subpart C, Negotiated Sales, Gifts,
and Exchanges of Individually Owned
Lands, addresses conveyances of
individually owned trust or restricted
lands. This subpart provides for a tribal
option to purchase any trust or
restricted interests proposed for sale,
gift, or exchange to unrestricted fee
status.
Subpart D, Tribal Parcel Purchase,
allows tribes to purchase tracts of trust
or restricted lands where the tribe either
owns at least 50% of the undivided
interests in the tract or has obtained the
consent of the co-owners of at least 50%
of the undivided interests in the tract,
subject to the right of an individual
owner in possession of the tract to
preempt the purchase.
Subpart E, Consolidation by Sale of
Highly Fractionated Parcels,
incorporates the new consolidation
mechanism authorized by AIPRA.
Consolidation by sale allows eligible
bidders to consolidate interests in
highly fractionated parcels where
certain consents are obtained. This
subpart also provides the procedures for
conducting the sale by public auction or
sealed bid. There is an ‘‘Application for
Consolidation by Sale’’ form associated
with this subpart. To obtain a copy of
the information collection request
submission to OMB or a copy of the
form, send your request to the address
related to information collections listed
in ADDRESSES.
Subpart F, Partitions in Kind,
authorizes the Secretary to subdivide
trust and restricted land with multiple
owners into smaller tracts in which the
interests of the owners are unified or
consolidated. This subpart allows any
owner of a fractionated interest to apply
to the Secretary for partition.
Subpart G, Mortgages and Deeds of
Trust, allows the Secretary to approve
mortgages or deeds of trust encumbering
individually owned land under certain
circumstances.
Much of the current regulatory
language is redesignated into subpart H,
Patents in Fee, Certificates of
Competency, and Orders Removing
Restrictions, and subpart I, Special
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New section.
Deleted.
Restates that a certified copy can be used in
place of an original in court or elsewhere.
Clarifies Department policy to allow public access to the Indian Land Record of Title. Deletes provision regarding nondisclosure of
monetary consideration and provision.
Provisions applicable to Osage and the
Five Civilized Tribes.
Changes From Preliminary Draft
The Department made several changes
to the preliminary draft of 25 CFR part
152. Many of the changes are intended
to clarify and make terminology
consistent.
Definitions: The Department deleted
the definitions for ‘‘competent’’ and
‘‘contiguous’’ and added definitions for
‘‘fair market value,’’ ‘‘family farm,’’ and
‘‘owner(s).’’ The Department revised the
definition for ‘‘Indian.’’
Land Consolidation Plans: The
preliminary draft had included a section
stating that a tribal land consolidation
plan may identify for purchase only
lands contiguous to the reservation or
otherwise subject to tribal jurisdiction.
Several tribal commenters objected to
the provision stating that the tribal land
consolidation plan may identify for
purchase only those lands that are
located within or contiguous to the
tribe’s reservation boundaries, or
otherwise subject to tribal jurisdiction.
One tribal commenter stated that
because it does not have fixed exterior
reservation boundaries, this provision
would prevent it from acquiring other
lands which are in the vicinity of its
separate trust parcels, but which are not
within or contiguous to that tribe’s
‘‘reservation boundaries.’’ A few tribal
commenters stated that this limitation is
substantive and is not contained in
ILCA section 2203, and therefore should
not be imposed by regulation. Another
tribal commenter stated that this
severely limits the unrestricted fee lands
the tribe can purchase. The Department
has deleted this restriction.
Additionally, the Department has
deleted the definition of ‘‘contiguous’’
since this deleted provision was the
only appearance of the term
‘‘contiguous’’ in the regulation.
Several tribal commenters also noted
that the tribal land consolidation plan
conditions effectively require tribes to
pre-identify every transaction to be
carried out under the plan—whether for
sale, purchase, or exchange. These
commenters noted that this requirement
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would cause the tribe to submit new
plans or plan amendments for every
such transaction. These commenters
also asserted that this requirement will
result in significant price inflation and
force tribes to pay more for those
targeted tracts than would be the case
without the proposed pre-identification
requirement. The Department has
replaced the requirement for specifically
identifying sales, purchases, and
exchanges with a requirement that the
plan include a description and map of
the general area of the sales, purchases,
and exchanges.
Several tribal commenters opposed
the requirement for approval of a tribal
land consolidation plan as an intrusion
on tribal sovereignty. Submission of a
tribal land consolidation plan is
optional and within the tribe’s
discretion. However, an approved land
consolidation plan will allow a tribe to
sell parcels of its trust land in
connection with an overall plan to
consolidate its land holdings and/or
decrease fractionation. Pursuant to
federal law, sales under an approved
consolidation plan may also be at
slightly less than fair market value. If
the tribe has no plans to sell its trust
land, though, there is no need for it to
prepare or submit a land consolidation
plan for approval.
Finally, the Department clarified the
process for sales and exchanges with a
land consolidation plan and without a
land consolidation plan.
Sales and Exchanges: The Department
revised section 152.210 (section 152.211
of the preliminary draft) to clarify that
a grantor may waive the right to be
notified of fair market value only if the
grantee is Indian, among the other
criteria. The Department also deleted
section 152.212 of the preliminary draft,
addressing requirements for appraisals
to determine fair market value because
the proposed draft instead incorporates
the requirements into the new definition
of ‘‘fair market value.’’
Several tribal commenters questioned
the meaning of the provision, ‘‘trust or
restricted land may only be conveyed to
a grantee in unrestricted fee status,
where all of the trust or restricted
interests in the tract are being
conveyed’’ in section 152.205 (section
152.206 of the preliminary draft). The
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Current
citation
152.1 ............
New citation
152.1
152.2
152.3
152.4
152.5
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Department has deleted this phrase and
clarified that the Indian tribe with
jurisdiction will receive notice and has
the option to purchase.
The preliminary draft provided that
tribal consent for conveyance would be
required if a law affecting probate and
inheritance rights was in effect. The
Department revised this section to
clarify that tribal consent of a
conveyance is required if the tribe
enacted a law requiring consent.
The preliminary draft required the
tribe to purchase the fractional interest
where it fails to promptly consent to the
sale. The Department has removed that
provision from the regulation.
Several tribal commenters questioned
use of the U.S. Department of Justice
(DOJ) title standards. The Department
deleted this reference and instead refers
generally to Department of the Interior
boundary standards.
Several tribal commenters objected to
the proposed provision allowing the
Secretary to liquidate off-reservation
interests and allow a tribe to purchase
an on-reservation interest where the
transfer creates a different pattern of
jurisdiction or aggravates existing
jurisdictional conflicts. This commenter
stated that this is contrary to the Federal
policy of Indian self-determination.
Another commenter stated that a
distinction should be made between
trust interests and restricted interests
because tribes have a jurisdictional
responsibility upon acquisition of the
beneficial interest in trust parcels. The
Department has deleted this section.
Tribal Tract Purchases: Two tribal
commenters expressed confusion over
the provision stating that tribal tract
purchase authority does not extend to
‘‘purchases that are limited to any such
fractional interests held in unrestricted
fee status.’’ The Department has deleted
this provision and clarified that tribal
tract purchases may include
conveyances to the tribe of interests
held in fee and that fee interests are
included in the calculation to determine
whether the tribe owns at least 50% of
the tract. With regard to providing
notice of a tribal tract purchase to
owners whose whereabouts are
unknown, the Department has
lengthened the time before the closing
of the sale that publication in a paper
21:07 Aug 07, 2006
can occur from 30 days to 90 days. The
Department has also clarified what
action it will take if it does not approve
the appraisal for a tribal tract purchase.
Consolidation by Sale: Several tribal
representatives commented on the fact
that an individual holding the largest
ownership interest in the tract, and 20%
or greater of the ownership interests in
the tract, has a right to match the
highest bid. The Department has not
made any substantive changes to these
provisions because they are prescribed
by AIPRA. One tribal commenter stated
that the regulation should clarify that
both trust and fee interests are subject
to consolidation by sale. The
Department has clarified this in section
152.402. Another tribal commenter
asked whether a fee interest owner
would be able to trigger a consolidation
by sale. Proposed section 152.403
entitles only ‘‘eligible bidders’’ to
submit applications for consolidation by
sale. A fee owner may submit an
application if he or she meets one of the
categories for ‘‘eligible bidder.’’ Finally,
the Department revised the definition of
‘‘bona fide’’ and made other
clarifications.
Partition in Kind: The Department
simplified section 152.501, establishing
what tracts may be partitioned and
deleted the provision excluding
partitions of restricted land in Alaska.
The preliminary draft included a
provision at section 152.606(b) stating
that the tribe will not have the right of
first refusal where encumbered land is
purchased as a result of a foreclosure or
sale proceeding. Several tribal
commenters asserted that the tribe
should have the right to purchase
interests that are to be foreclosed and
are to be taken into unrestricted fee
status. The Department has deleted this
provision and instead states that title
will be taken in accordance with laws
applicable to the foreclosure or sale
proceeding.
Distribution Table—25 CFR Part 152
The following distribution table
indicates where each of the current
regulatory sections in 25 CFR part 152
is located in the proposed 25 CFR part
152.
Title
Remarks
What does this part do?
What terms do I need to know?
Will the Secretary provide ownership information?
To whom will the Secretary provide ownership information?
Which subparts do not apply to Alaska?
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New section.
Adds and amends definitions.
New section.
New section.
New section.
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Current
citation
152.2 ............
New citation
Title
Remarks
152.101
What transactions are covered by this subpart?
152.102
What must a land consolidation plan include?
152.103
152.104
Are there any restrictions on a land consolidation plan?
How does the Secretary approve a land consolidation
plan?
How does a tribe receive approval for a sale or exchange under a land consolidation plan?
How may the tribe use the proceeds of a sale or exchange?
In the absence of an approved land consolidation plan,
how does a tribe get approval for an exchange of
tribal land?
What criteria will the Secretary use to determine whether to approve an exchange?
..........................................................................................
Application for patent in fee ............................................
Issuance of patent in fee ................................................
Issuance of patents in fee to non-Indians and Indians
with whom a special relationship does not exist.
Application for certificate of competency ........................
Issuance of certificate of competency ............................
Certificates of competency to certain Osage adults .......
Application for orders removing restrictions, except Five
Civilized Tribes.
Issuance of orders removing restrictions, except Five
Civilized Tribes.
Removal of restrictions, Five Civilized Tribes, after application under authority other than section 2(a) of
the Act of August 11, 1955.
Removal of restrictions, Five Civilized Tribes, after application under authority of section 2(a) of the Act of
August 11, 1955.
Removal of restrictions, Five Civilized Tribes, without
application.
Judicial review of removal restrictions, Five Civilized
Tribes, without application.
Effect of order removing restrictions, Five Civilized
Tribes.
Who may convey an interest in trust or restricted land?
152.105
152.106
152.107
152.108
152.3
152.4
152.5
152.6
............
............
............
............
....................
152.701
152.702
152.703
152.7 ............
152.8 ............
152.9 ............
152.10 ..........
152.704
152.705
152.801
152.802
152.11 ..........
152.803
152.12 ..........
152.804
152.13 ..........
152.805
152.14 ..........
152.806
152.15 ..........
152.807
152.16 ..........
152.808
152.17,
(152.18).
152.19 ..........
152.20 ..........
152.21 ..........
152.203
152.22 ..........
152.23 ..........
....................
....................
152.201
152.202
....................
152.204
152.205
152.206
152.207
152.208
..........................................................................................
..........................................................................................
What lands are covered by this subpart?
What transactions are covered by this subpart?
..........................................................................................
Who can receive an interest in trust or restricted lands?
What restrictions apply to a conveyance of trust or restricted land to fee status?
How does an owner initiate a negotiated sale, gift, or
exchange?
Does a conveyance of a fractional interest require the
consent of the co-owner(s)?
Is tribal consent required to convey an interest in trust
or restricted land located within the tribe’s jurisdiction?
When must fair market value be determined and provided to the grantor?
152.210
152.25 ..........
152.209
Is payment required for a negotiated sale, exchange, or
gift?
152.211
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152.24 ..........
When must the Secretary receive payment for the conveyance of the land?
How does the Secretary decide to approve a negotiated sale, gift, or exchange?
How does the negotiated sale or exchange occur?
When is a negotiated sale, gift, or exchange effective?
How does an Indian Land Consolidation Program lien
attach?
152.212
152.213
152.214
152.215
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Incorporates AIPRA principles by clarifying that the
Secretary will only approve sales of tribal land when
made in accordance with a consolidation plan.
New section. Lists items that must be included in a tribal land consolidation plan.
New section.
New section.
New section.
New section.
New section.
New section.
Deleted.
Redesignated.
Redesignated.
Redesignated.
Redesignated.
Redesignated.
Redesignated.
Redesignated.
Redesignated.
Redesignated.
Redesignated.
Redesignated.
Redesignated.
Redesignated.
Clarifies who may convey interests with Secretarial approval.
Deleted.
Deleted.
Clarifies scope of subpart.
Clarifies scope of subpart.
Deleted.
New section.
New section.
Clarifies what a written request for negotiated sale, gift,
or exchange must include.
New section.
New section.
Establishes circumstances in which grantor may waive
right to be provided with information as to the fair
market value.
Removes restrictions for conveyances at less than fair
market value because 152.210 entitles the grantor to
full information regarding the fair market value.
New section.
New section.
New section.
New section.
New section.
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152.216
152.217
152.218
152.301
152.302
152.303
152.304
152.305
152.306
152.307
152.401
152.402
152.403
152.404
152.405
152.406
152.407
152.408
152.409
152.26 ..........
152.410
152.27 ..........
152.411
152.412
152.28 ..........
152.413
152.29 ..........
152.30 ..........
152.414
....................
152.415
152.416
152.417
152.31 ..........
152.32 ..........
152.418
....................
152.219
152.33 ..........
152.34 ..........
152.35 ..........
....................
....................
....................
Title
Remarks
How is an Indian Land Consolidation Program lien removed?
When can a co-owner acquire an interest previously
acquired on behalf of the tribe?
What if there are liens or other encumbrances on the
lands to be conveyed?
What lands are covered by this subpart?
What transactions are covered by this subpart?
How does a tribe apply for a parcel purchase?
How and when will owners be notified of an application
for tribal parcel purchase?
Can an individual owner preempt and succeed a tribe’s
right to purchase?
How and when will the Secretary review an application
for parcel purchase?
How and when will the conveyance instrument be executed?
What terms do I need to know?
What lands are subject to consolidation by sale?
How do I apply to consolidate a parcel by sale?
What must the Secretary do before acting on an application for consolidation by sale?
What consents are necessary for a consolidation by
sale?
How will the Secretary notify owners of the consolidation proceeding?
What action does the Secretary take on comments or
objections?
What happens if the Secretary orders a new appraisal?
How can an owner appeal a consolidation by sale proceeding?
How will the Secretary notify owners of a sale after appeals have been decided?
Who may participate in an auction or sealed bid sale?
How does a tribe reserve its right to match the highest
bid?
How will the Secretary determine the successful bidder?
What happens if no bid matches the fair market value?
..........................................................................................
When must the highest bidder pay for the purchase?
How will proceeds be distributed?
Is Federal financial assistance available to support a
bidder’s purchase?
What title is acquired?
..........................................................................................
How does a transaction affect collection of construction
costs for irrigation projects?
..........................................................................................
..........................................................................................
..........................................................................................
New section.
New section.
New section.
New
New
New
New
section.
section.
section.
section.
New section.
New section.
New section.
New
New
New
New
section.
section.
section.
section.
New section.
New section.
New section.
New section.
Limits discussion of advertising to consolidation by
sale.
Limits discussion of advertised sale to consolidation by
sale.
New section.
New section.
New section.
Deletes provisions allowing the Secretary to reject bids.
Deleted.
New section.
New section.
New section.
New section.
Deleted.
Plain language.
Deleted. See subpart F.
Deleted. See subpart G.
Deleted.
Subpart F—Partitions in Kind
152.501
152.502
152.503
152.504
152.505
152.506
What lands are covered by this subpart?
When does this subpart apply?
How can an owner initiate a partition action?
How will we notify the applicant’s co-owners of an application for partition?
How and when will we review an application?
When will we execute the conveyance instruments?
New
New
New
New
section
section.
section.
section.
New section.
New section.
Subpart G—Mortgages and Deeds of Trust
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152.601
152.602
152.603
152.604
152.605
152.606
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What does this subpart do?
How do owners submit an application for approval of a
mortgage or deed of trust?
How will the Secretary review the application?
How may the mortgage or deed of trust be enforced?
Does the land remain in trust as a result of foreclosure
or sale?
How does the Paperwork Reduction Act affect this
part?
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New section.
New section.
New section.
New section.
New section.
New section.
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E. 25 CFR Part 179—Life Estates and
Present and Future Interests
This regulation sets forth the
authorities, policy and procedures
governing the administration of life
estates and future interests in Indian
lands by the Secretary of the Interior.
Amendments to this part explicitly
identify the rights and responsibilities
of the life tenant, and define the life
tenant’s share of income, contract
bonuses, and royalties derived from the
use of the land and the extraction of
minerals or other resources from the
land. AIPRA established that life estates
are ‘‘without regard to waste,’’ meaning
that the life tenant is entitled to all
income, contract bonuses, and royalties
derived from use of the land and
extraction of resources. The
amendments to this part incorporate
this change, providing that all life
estates created after June 20, 2006, will
be entitled to all income, contract
bonuses, and royalties, in the absence of
an order, conveyance document, or
written agreement specifying otherwise.
The amendments delete the Single
Life Factor table for determining the
respective values of a life estate and
remainder share and instead refer to
Actuarial Table S, Valuation of
Annuities, obtained from 26 CFR
20.2031. The amendments also
eliminate the distinction between the
genders in determining the value of a
life estate; the current regulations
generally value life estates held by
females higher than those held by
males.
New sections address several topics
that allow the Department to determine
the type of estate and interest in which
a beneficial interest may be held, to
ensure that the holder of a life estate,
the measuring life for a life estate, the
holder of a future interest, and class
members can be ascertained in all cases,
including when the conveyance
document or probate order includes
conditions. The amendments also
address the termination and
renunciation of life estates, establish
why notification to BIA of the death of
a life tenant is important, and establish
that term estates will be treated in the
same manner as life estates for the
purposes of distributing income, cash
bonus, and principal.
Changes From Preliminary Draft
The Department added several new
definitions, including ‘‘class,’’
‘‘condition,’’ ‘‘contingent remainder,’’
‘‘conveyance document,’’ ‘‘estate,’’
‘‘executory interest,’’ ‘‘extant person,’’
‘‘grantee,’’ ‘‘grantor,’’ ‘‘holder,’’ ‘‘life
tenant,’’ ‘‘open class,’’ ‘‘order,’’ ‘‘present
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interest,’’ ‘‘remainderman,’’
‘‘reversionary interest,’’ ‘‘Secretary,’’
‘‘term estate,’’ and ‘‘vested.’’ The
Department also added several sections
and expanded others since it released
the preliminary draft of part 179.
Effect of State Law: The preliminary
draft stated that the Department would
look to state law for guidance in the
absence of Federal law or Federally
approved tribal law. This section has
been deleted because the Office of
Hearings and Appeals will determine
when it is appropriate to look to state
law.
Ascertaining Beneficial Interests and
Classes: The Department has added
several provisions that ensure that the
Department can determine the type of
estate and interest in which a beneficial
interest may be held. For example,
proposed section 179.3 ensures that the
interest in a life estate vests only in
specific, living persons, without
conditions. Proposed section 179.4
ensures that the ‘‘measuring’’ life for a
life estate is a specific person who is
living at the time the conveyance
document is approved or testator dies.
Proposed section 179.5 ensures that the
interest in future interest holders vests
only in specific, extant persons, and if
there are conditions, that those
conditions can be satisfied before the
Secretary’s approval of the conveyance
document, if the future interests are
created by conveyance document, or by
the death of the testator, if the future
interests are created by will. This
section will, in practice, forbid
successive future interest in persons
who are non-specific, non-living
persons. Likewise, proposed sections
179.6, 179.7 and 179.8 indicate that,
where the conveyance or will grants an
interest to a class, the class will close
and any conditions must be satisfied
upon approval of the conveyance
document or death of the testator.
Proposed section 179.8 also describes
the circumstances in which the
Secretary may close or open a class.
These changes allow the Secretary to
know, at the time of approval of
conveyance document or death of the
testator, who holds the beneficial
interests.
Without Regard to Waste: During
tribal consultations and during the
period leading up to the publication of
this proposed rule, several tribal
commenters expressed concern with the
preliminary draft’s definition of
‘‘without regard to waste’’ and the
phrase’s effect on protection of the
remainderman’s interest from abusive
practices of the life tenant. AIPRA states
that all life estates created on or after
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45185
June 20, 2006, shall be ‘‘without regard
to waste’’ and defines this phrase as
meaning that the life tenant shall be
entitled to all income, including
bonuses and royalties, to such land to
the exclusion of the remaindermen. The
Department has incorporated this
concept into the regulations at proposed
section 179.12, which provides that,
where the order, conveyance document,
or written agreement does not specify
otherwise, life tenants will be entitled to
all income, principal, contract bonuses,
and royalties where the life estate was
created by a conveyance document after
the effective date of this regulation or by
an order in a probate case where the
testator died on or after June 20, 2006.
The Department has also added
sections 179.9, 179.10 and 179.11,
which respectively establish the
privileges of a life tenant, the
responsibilities a life tenant has to the
remainderman, and action a
remainderman may take to stop a life
tenant from damaging and substantially
diminishing property. Section 179.10
specifically states that, with respect to
life estates created by probate order after
June 20, 2006, or by conveyance
document after the passage of this
regulation, the life tenant may not
destroy the estate, commit malicious
waste, or fail to reasonably manage the
land in a manner consistent with longterm utilization and trust status of the
land.
Sale or Leasing of Interests: The
Department has clarified in proposed
section 179.9 that the life tenant may
rent or sell the life estate interest to
someone else. Additionally, section
179.10 notes that provisions regarding
the relationship between a life tenant
and remainderman do not restrict or
amend the authority of the Secretary to
consent on behalf of interest owners to
the leasing or transfer of Indian land.
Value of Current Life Estate and
Remainder: Several tribal commenters
identified an issue with placing the
Single Life Factor chart directly into the
text of the regulation, stating that it will
be difficult to update. The Department
has addressed this issue by deleting the
Single Life Factor chart from the text of
the regulation and instead referring to
an existing chart that is frequently
updated.
Distribution Table—25 CFR Part 179
The following distribution table
indicates where each of the current
regulatory sections in 25 CFR part 179
is located in the proposed 25 CFR part
179.
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179.1 ............
179.1
179.2 ............
179.3 ............
179.2
....................
179.3
179.4
179.5
179.6
179.7
179.8
179.9
179.10
179.11
Title
Remarks
What is the purpose of this part?
What terms do I need to know?
..........................................................................................
Who can hold a life estate?
Who can be the measuring life for a life estate?
Who can be designated as a future interest holder?
Who can be members of a class?
How are interest holders determined if the conveyance
document or order contains conditions?
How are members to be determined if there is an open
class?
What are the privileges of a life tenant?
What is the life tenant’s responsibility to the remainderman?
How can a future interest holder stop the life tenant
from damaging his/her interest and substantially diminishing its value?
How will the Secretary distribute income and principal
between the life tenant and the remainderman?
179.4 ............
179.12
179.5 ............
179.13
How will the value of a current life estate and remainder be determined?
179.14
179.15
179.16
How does a life estate terminate?
What if I do not want an interest in a life estate?
Why do I need to notify the Secretary about the death
of a life tenant?
How will term estates be treated?
..........................................................................................
179.6 ............
179.17
....................
F. 43 CFR Part 4, Subpart D
Currently, subpart D of 43 CFR part 4
addresses how OHA adjudicates the
probate file that BIA prepares under 25
CFR part 15. The amendments remove
the probate hearing procedures to a new
part 30. See the discussion of these
changes below.
rwilkins on PROD1PC63 with PROPOSALS
G. 43 CFR Part 30
The amendments make many
administrative changes to the part to
better meet plain language requirements
and make the OHA probate process as
transparent as possible. In addition, the
amendments make several substantive
changes. Amendments to this part
clarify the two types of probate
proceedings (summary and formal),
simplify the deadline for filing a claim
against an estate, and clarify the
authority of administrative law judges,
Indian probate judges, and attorney
decision makers.
Other amendments reduce the impact
of fractionation on trust and restricted
lands and expand land consolidation
options by incorporating administrative
procedures to implement AIPRA
provisions related to consolidation
agreements, renunciations in favor of a
designated recipient, and purchase
options at probate. Consolidation
agreements permit heirs and devisees to
exchange interests in trust or restricted
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Clarifies that these regulations do not apply to any Federal statutory rights to purchase.
Adds several definitions.
Deleted.
New section.
New section.
New section.
New section.
New section.
New section.
New section.
New section.
New section.
Incorporates AIPRA provisions for life estates created
after AIPRA’s effective date, providing that these life
tenants are entitled to all income, principal, contract
bonuses, and royalties.
Replaces existing life estate value tables with a reference to one table. Deletes gender as factor affecting life estate values.
New section.
New section.
New section.
New section.
Deleted.
lands for the purpose of consolidating
ownership. Renunciations in favor of a
designated recipient enable heirs or
devisees that would have inherited a
trust or restricted interest to renounce
that interest in favor of another eligible
party. The availability of the option to
purchase a decedent’s trust or restricted
interests has been expanded to allow
tribes, eligible family members, and coowners of trust or restricted interests to
exercise the option.
Changes From Preliminary Draft
Because a significant number of issues
on 43 CFR part 4 were identified in
tribal comments, the following
discussion addresses the issues by
subheading in the new 43 CFR part 30.
Overall: The Department reorganized
some sections in this subpart to provide
a better logical flow. For example, the
Department moved former sections
4.382 and 4.383, related to the omission
and improper inclusion of property in
an estate, to sections 30.126 and 30.127
under the ‘‘Judicial Authority and
Duties’’ subheading. Additionally,
former section 4.216, related to what
happens when a person dies without a
will and has no heirs, has been moved
to section 30.254 under the
‘‘Miscellaneous’’ subheading. Section
4.217, related to settlement agreements,
has been moved to section 30.150,
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under the new subheading
‘‘Consolidation and Settlement
Agreements’’ (formerly, this subheading
included only consolidation
agreements). Provisions related to tribal
purchase of interests under special
statutes (sections 4.290 through 4.304 of
the preliminary draft) have been moved
to sections 30.260 through 30.274. The
Department also added a few sections
under the ‘‘Renunciation of Interests’’
and ‘‘Summary Probate Proceedings’’
subheadings for clarity.
The Department and tribal
commenters identified potential
confusion regarding references to
‘‘allocated market value,’’ ‘‘estimated
market value,’’ and ‘‘appraised market
value.’’ The Department has addressed
this issue by deleting references to
‘‘allocated’’ and ‘‘estimated’’ market
value and replaced them with
‘‘appraised’’ market value.
Several tribal commenters noted that
while the preliminary drafts established
timelines for filing an appeal, they did
not impose any timelines on OHA to
act. For example, several tribal
commenters suggested placing a
deadline on OHA for designating a case
as appropriate for summary or formal
hearing and assigning a case to a judge
10 days after receiving the file from BIA.
Other tribal commenters suggested
imposing a timeframe on notifying
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potential heirs that a probate case has
been assigned to a judge. Another tribal
commenter recommended setting time
periods for holding the hearing and
issuing a final decision in a probate
case. The Department has determined
that, given the variation in complexity
and resources available, establishing set
timelines for judges would not be
feasible.
Definitions: In response to tribal
comments, the Department modified the
current definition of ‘‘interested parties’’
to ensure that tribes and co-owners with
the option to purchase are included in
the definition. Several tribal
commenters were concerned that the
definition in the preliminary draft was
too narrow, and would not provide
notice to persons with an interest. The
revised definition includes tribes and
persons with the option to purchase at
probate and all co-owners. (See
proposed section 30.102).
Additionally, the Department revised
several definitions included in the
preliminary draft to ensure consistency
with AIPRA and 25 CFR part 15. The
Department amended the definition of
‘‘child’’ to include adopted children, in
response to tribal comments that
biological and adopted children should
be treated equally in the distribution of
property at probate. The Department
also amended other terms for precision:
for example, it changed ‘‘trust financial
assets’’ and ‘‘cash assets’’ to ‘‘trust
personalty’’ to encompass both cash and
securities; it changed ‘‘beneficiaries’’ to
‘‘devisees,’’ which is a more precise
term including only those who receive
under a will; it revised the definitions
for ‘‘per stirpes’’ and ‘‘de novo’’ for
clarity; and it deleted the placeholders
for definitions for ‘‘residing on’’ and
‘‘pretermitted spouse,’’ having
determined that meanings for these
terms are subject to judicial
determination based on fact-specific
circumstances.
Commencement of Probate
Proceedings: The Department clarified
in section 30.114 that OHA will provide
notice of the formal or summary probate
proceeding and eliminated the
requirement for BIA to notify potential
heirs and devisees when it forwards the
probate file to OHA for consideration
because sufficient notice is provided by
OHA upon designation of the case for a
formal or summary probate proceeding.
Judicial Authority: The Department
amended section 4.220 of the
preliminary draft, relating to the judge’s
general authority. It is now designated
as section 30.120. In proposed
subsection (f), the Department clarifies
that the probate decision and order, not
the terms of the sale, determine how the
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sale at probate and distribution of
interests will occur. The Department
also clarifies in proposed subsection (i)
that the judge first determines whether
the tribe has jurisdiction over the trust
or restricted property at issue.
The Department clarified the standard
against which a judge may determine a
person to be dead based upon an
extended unexplained absence. The
revisions require credible evidence to
establish, by a clear and convincing
standard, that the person has had no
known contact with any person or entity
during the six-year period preceding the
hearing. (See proposed section 30.124).
Claims: Tribal commenters pointed
out that deadlines for filing claims were
both unclear and potentially conflicting.
The Department significantly amended
the provisions related to deadlines for
filing claims to simplify the deadline
and make consistent with 25 CFR part
15. The deadlines established in the
preliminary draft complicated the
matter of determining timeliness of
claims and introduced both factual and
legal issues, including choice of law
issues, to determine when the creditor
was chargeable with notice.
Additionally, the preliminary draft
continued the current requirement that
the creditor file with BIA rather than
OHA. This requirement is no longer
appropriate since BIA no longer
conducts any probate hearings. For this
reason, the Department is allowing
filing of claims with BIA while the
probate file is being prepared, or with
the OHA once the probate file has been
transferred to the OHA. The Department
has also clarified what must be included
in a claim and eliminated the
requirement for filing in triplicate.
Additionally, the Department deleted
the section related to priority and
general claims (what had been sections
4.245 and 4.248 in the preliminary
draft).
Settlement and Consolidation
Agreements: The Department placed
provisions relating to settlement
agreements with those relating to
consolidation agreements. Revisions to
the sections on consolidation
agreements now specify that there are
two types of consolidation agreements,
one including only property in the
estate, and another including both
property in the estate and other property
already owned by the heirs or devisees.
The Department added a section
allowing parties to a settlement or
consolidation agreement the ability to
waive valuation of trust property, given
that the parties to the agreement may
have non-economic reasons for entering
into the agreement.
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45187
Purchase at Probate: The Department
clarified provisions relating to purchase
at probate and clarified that, in
accordance with AIPRA, an appraisal
must be completed to determine market
value. The Department also clarified
provisions relating to renunciations to
clarify who may receive a renounced
interest in trust or restricted land, and
who may receive a renounced interest in
trust personalty. The Department also
changed the previous provision that had
stated the renunciation would not be
valid if the designated recipient of a
renounced interest refused to take the
interest. Instead, this provision now
states that the renounced interest will
pass to the heirs of the decedent as if the
person renouncing the interest had
predeceased the decedent.
Summary Probate Proceedings: The
Department clarified what summary
probate proceedings are and simplified
the criteria for when a summary probate
proceeding is appropriate (i.e., when the
estate is ‘‘cash only’’ and the estate’s
value does not exceed $5,000 on the
date of death). The Department deletes
references to consolidation agreements
and purchases at probate with regard to
summary probate proceedings because
such agreements would not apply to a
cash-only estate.
Formal Probate Proceedings: In
response to tribal concerns regarding
notice of a tribe’s right to purchase, the
Department amended section 4.337 of
the preliminary draft to require notice to
the tribe of probates of estates with trust
or restricted land under the tribe’s
jurisdiction (see proposed section
30.213).
The Department has deleted the
question related to the judge’s authority
to require a person to appear at a
hearing (section 4.334 of the
preliminary draft) because, while the
judge does have this authority, the
judge’s subpoena authority is broader
than the question and answer indicates.
The section related to notice of a
requirement to appear at a hearing has
also been deleted to avoid confusion.
With regard to contests of self-proved
wills, the Department has added a
provision allowing the judge to order
the deposition of a witness at a location
reasonably near the witness’s residence,
where no attesting witness resides near
the place of the hearing.
The Department has also clarified that
the official record of the probate case
and decisions contain settlement
agreements, consolidation agreements,
renunciations and acceptances of
renounced property, and additional
items where interests are sold at
probate.
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Federal Register / Vol. 71, No. 152 / Tuesday, August 8, 2006 / Proposed Rules
Miscellaneous: The section addressing
the rights of inheritance of someone
who kills the decedent has been revised
to comply with AIPRA. The Department
also clarifies that a judge may allow fees
for attorneys representing interested
parties, but not creditors and that a
Current
citation
30.100
30.101
4.201 .....................
30.102
4.210, 4.211 ..........
30.110
30.111
30.112
30.113
30.114
4.202 .....................
30.115
30.120
30.121
30.122
4.206 .....................
30.123
4.204, 4.203 ..........
30.124
4.205 .....................
30.154
4.242 .....................
30.125
30.130
30.131
30.132
30.133
30.134
30.135
30.136
4.250(a) .................
4.250(c) .................
30.137
30.138
30.140
30.141
4.250(b) .................
30.142
4.250(d)–(f) ...........
30.143
4.251(a) .................
rwilkins on PROD1PC63 with PROPOSALS
Distribution Table—43 CFR Part 4,
Subpart D
30.144
4.251(b) .................
....................
4.251(c) .................
....................
4.251(d) .................
4.251(e)–(g) ..........
30.145
30.147
21:07 Aug 07, 2006
regulatory sections in 43 CFR part 4,
subpart D, is located in the proposed 43
CFR part 30 and in proposed revisions
to 43 CFR part 4.
The following distribution table
indicates where each of the current
New citation
4.200 .....................
VerDate Aug<31>2005
judge may order the payment of fees to
a guardian ad litem.
Title
Remarks
How do I use this subpart?
Will the Secretary probate all the land or assets in
an estate?
What terms do I need to know?
When does OHA commence a probate case?
How does OHA commence a probate case?
What must a complete probate file contain?
What will OHA do if it receives an incomplete probate file?
What notice of the probate case will OHA send me?
Can I review the probate file?
What authority does the judge have in a probate
case?
May a judge appoint a master in a probate case?
Is the judge required to accept the master’s recommended decision?
Will the judge determine matters of status and nationality?
Can a judge find a person to be dead by reason of
unexplained absence?
What happens when a person dies without a will and
has no heirs?
May a judge reopen a probate case to correct errors
and omissions?
When must a judge or attorney decision maker
(ADM) recuse himself or herself from a probate
case?
Where may a judge or ADM seek guidance on
recusal?
May an interested party to a probate proceeding excuse a judge from hearing a case?
May an interested party to a probate proceeding request that a judge recuse?
What must the judge consider when deciding whether to recuse?
What action will the judge take after deciding to
recuse himself or herself?
How will the case proceed once the judge has
recused?
Can I appeal the judge’s recusal decision?
When can I appeal the judge’s recusal decision?
When must I file a claim against the probate estate?
How must I file a creditor claim against the probate
estate?
Will a judge authorize payment of a claim from the
trust estate where the decedent’s non-trust estate
may be available?
Are there any categories of claims that may not be
allowed?
May the judge authorize payment of the costs of administering the estate?
What are priority claims the deciding official may authorize payment for?
When may the deciding official authorize payment of
general claims?
When can a judge reduce or disallow a claim?
What happens if there is not enough money in the
IIM account to pay all the claims?
Jkt 208001
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Adds updated references.
New section.
Adds definitions for ‘‘BLM,’’ ‘‘consolidation agreement,’’ ‘‘directional disclaimer,’’ ‘‘probate staff,’’
‘‘purchase option.’’ Replaces ‘‘deciding official’’
with ‘‘judge.’’ Deletes definition of ‘‘solicitor.’’
Plain language.
Plain language.
Plain language.
Adds that OHA may issue a subpoena for the missing information or proceed with a hearing.
Adds that OHA will provide notice upon receipt of
the probate file.
New section.
Deletes criteria for when a formal hearing is necessary. Adds new categories of authority.
New section. Allows judge to appoint masters.
New section.
Plain language.
Establishes standard for finding that any person is
dead.
Incorporates AIPRA references.
Plain language. Identifies circumstances in which
judge may reopen probate case.
New section.
New section.
New section.
New section.
New section.
New section.
New section.
New section.
New section.
Amends deadline for filing claims.
Eliminates requirement for triplicate filing. Clarifies
what must be included in the affidavit and itemized
statement.
Plain language.
Adds category for claims attributable to payments for
general assistance, welfare, or similar assistance.
Plain language.
Deleted.
Deleted.
Plain language.
Plain language.
E:\FR\FM\08AUP2.SGM
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Federal Register / Vol. 71, No. 152 / Tuesday, August 8, 2006 / Proposed Rules
Current
citation
New citation
4.251(h) .................
30.148
4.252 .....................
4.207 .....................
30.146
30.150
30.151
Title
45189
Remarks
Will interest or penalties charged against claims after
the date of death be paid?
What property is subject to claims?
If the interested parties agree to settle matters
among themselves, what does the judge do?
Plain language.
Plain language.
Plain language. Deletes reference to liability for irrigation construction and operation costs. Deletes
provisions regarding preparation, deliverance, and
approval of deeds.
New section. Adds AIPRA provisions allowing for
consolidation agreements.
New section.
30.160
May the devisees or eligible heirs in a probate proceeding consolidate their interests?
May the parties to a settlement agreement or consolidation agreement waive valuation of the trust
property?
Is an order approving a consolidation agreement or
settlement agreement considered a partition or
sale transaction?
What can be purchased at probate?
30.161
Who can purchase at probate?
30.162
30.163
Does property purchased at probate remain in trust
or restricted status?
Is consent required for a purchase at probate?
30.164
What must I do to purchase at probate?
30.165
Who will OHA notify of a request to purchase at probate?
What will the notice of the request to purchase at
probate include?
How does OHA decide whether to grant a request to
purchase at probate?
What will the judge consider in determining the market value of an interest?
New section. Adds provisions describing when consent of an heir or devisee is required for a purchase at probate.
New section. Adds provisions describing procedure
for requesting a purchase at probate.
New section. Adds provisions for notification by OHA
and required contents of the notice.
New section.
New section.
30.152
30.153
30.166
30.167
30.168
30.169
30.170
30.171
30.172
30.173
If I do not agree with the appraised market value,
what can I do?
What happens when OHA grants a request to purchase at probate?
When must the successful bidder pay for the interest
purchased?
What happens after the successful bidder submits
payment?
What happens to the money from the sale?
30.174
4.208 .....................
What happens if the successful bidder does not pay
within 30 days?
30.180
May I give up an inherited interest in trust or restricted property or trust personalty?
How do I renounce an inherited interest?
Who may receive a renounced interest in trust or restricted land?
Who may receive a renounced interest of less than
5 percent in trust or restricted land?
Who may receive a renounced interest in trust personalty?
Can my designated recipient refuse to accept the interest?
Are renunciations that predate the American Indian
Probate Reform Act of 2004 valid?
May I revoke my renunciation?
Does a renounced interest vest in the person who
renounced it?
What is a summary probate proceeding?
30.181
30.182
30.183
30.184
30.185
30.186
rwilkins on PROD1PC63 with PROPOSALS
4.208(c) .................
4.208(b) .................
30.187
30.188
4.212 .....................
30.200
30.202
30.201
4.213 .....................
VerDate Aug<31>2005
....................
21:07 Aug 07, 2006
May I request a summary probate proceeding be replaced by a formal proceeding?
What does a notice of a summary probate proceeding contain?
.....................................................................................
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New section. Clarifies basis and procedures for approval of consolidation agreements.
New section. Incorporates provisions for purchase at
probate.
New section. Incorporates definition for eligible purchaser.
New section.
New section. Clarifies that a judge must base the
market value on an appraisal that meets certain
standards.
New section. Establishes process for challenging appraisal.
New section. Clarifies the procedures for notifying
the successful bidder and finalizing the sale.
New section.
New section.
New section. Clarifies that the Department will distribute the money from the sale to the appropriate
heirs, devisees, and/or spouse.
New section. Clarifies that the sale will be cancelled
if the successful bidder fails to pay the bid within
30 days.
Plain language.
Plain language.
New section.
New section.
New section.
New section.
New section.
Plain language.
Plain language.
Deletes provision stating that Federal law or tribal
code may prevent summary processing.
Changes time period for filing a request for formal
hearing from 60 days to 30 days.
New section.
Deleted.
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Federal Register / Vol. 71, No. 152 / Tuesday, August 8, 2006 / Proposed Rules
Current
citation
New citation
Title
Remarks
4.214 .....................
30.203
What must a summary probate decision contain?
4.215(a)–(c) ...........
30.204
4.215(d) .................
....................
How do I seek review of a summary probate proceeding?
.....................................................................................
4.215(e) .................
30.205
30.206
4.216 .....................
What happens after I file a request for a de novo review?
What happens if nobody files for a de novo review?
30.210
How will I receive notice of the formal probate proceeding?
30.213
What notice to a tribe is required in a formal probate
proceeding?
30.211
30.212
Will the notice be published in a newspaper?
Can I waive notice of the hearing, the time limits, or
form of notice?
What must a notice of hearing contain?
4.217 .....................
30.214
4.220(a), (c) ..........
30.215
4.221(a)–(c) ...........
30.216
4.221(d)–(g) ..........
4.221(h) .................
4.222 .....................
30.217
30.218
30.219
30.220
4.223 .....................
30.221
4.224 .....................
30.222
4.225 .....................
4.230 .....................
30.223
30.224
4.231 .....................
30.225
30.226
30.227
30.228
30.229
4.233(c) .................
30.230
4.234 .....................
4.235 .....................
4.236(a) .................
30.231
30.232
30.233
4.236(b) .................
rwilkins on PROD1PC63 with PROPOSALS
4.232 .....................
4.233(a)–(b) ..........
30.234
30.235
4.240(a) .................
30.236
4.240(b) .................
4.241(a) .................
30.237
30.238
VerDate Aug<31>2005
21:07 Aug 07, 2006
How can I obtain documentation related to the probate proceeding?
How does an interested party obtain permission to
take depositions?
How is a deposition taken?
How may the transcript of a deposition be used?
Who pays for the costs of taking a deposition?
How does an interested party obtain written interrogatories and admission of facts and documents?
May the judge limit the time, place, and scope of
discovery?
What happens if a party fails to comply with discovery?
What is a prehearing conference?
Can a judge compel a witness to appear and testify
at a hearing?
Are probate hearings open to the public?
Must testimony in a probate proceeding be under
oath or affirmation?
Is a record made of formal probate hearings?
What evidence is admissible at a probate hearing?
Is testimony required for self-proved wills or codicils?
What if approval of the self-proved will, codicil or
revocation is contested?
Who pays witnesses’ costs?
May a judge schedule a supplemental hearing?
What will the official record of the probate case contain?
What will the judge do with the original record?
What happens if a hearing transcript has not been
prepared?
What will the judge’s decision in a formal probate
hearing contain?
What notice of the decision will the judge provide?
May I file a petition for rehearing if I disagree with
the judge’s decision in the formal probate hearing?
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Adds provisions regarding renunciation. Deletes provisions regarding dower, curtesy, and homestead,
and requirement to attach certified inventory of
trust or restricted lands. Changes time in which
decision will become final from 60 days to 30
days.
Changes time period for filing request for de novo
review from 60-day period to 30-day period.
Deleted. Provision had allowed persons to request
de novo review after expiration of time period for
filing request under certain circumstances.
Plain language.
New section. Establishes what happens at expiration
of 30-day period for filing de novo review.
Adds locations for posting. Deletes provision establishing that interested parties living near posting
will be bound by decision.
Expands notice to tribes where there is a statutory
option to purchase to provide notice to tribe of
every formal probate proceeding involving trust or
restricted land over which the tribe has jurisdiction.
New section.
New section.
Plain language. Adds provisions regarding consolidation and renunciation.
Plain language. Adds provisions.
Plain language.
Plain language.
Plain language.
New section.
Plain language. Deletes provision regarding cross-interrogatories.
Plain language.
Provides that the judge may draw inferences adverse to the claims of the party who failed to comply with the discovery request.
Plain language.
Establishes procedure for requesting a subpoena.
Clarifies that probate hearings are open to public.
Establishes that the judge may seal the record or
transcript of sequestered hearings.
Plain language.
Plain language.
Clarifies evidentiary admissibility matters.
Moves affidavit language to 25 CFR part 15. Adds
that judge may order deposition of available attesting witnesses at location reasonably near residence of witness.
Plain language.
Plain language.
Plain language.
Plain language.
Plain language.
Plain language.
Specifies what decision will contain in intestate case
and in testate case. Adds provisions for renunciations, consolidation and settlement agreements,
and purchases at probate.
Changes time period from 60 to 30 days.
Changes time period for filing petition from 60 to 30
days. Requires judge to forward copy of petition to
affected agencies.
E:\FR\FM\08AUP2.SGM
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Current
citation
New citation
4.241(b) .................
30.239
4.241(c)–(e) ...........
4.241(f) ..................
30.240
30.241
4.241(g)–(h) ..........
....................
30.242
4.242 .....................
30.243
30.244
4.261 .....................
4.262 .....................
30.245
....................
30.246
30.250
30.251
4.270 .....................
4.271 .....................
....................
30.126
4.272 .....................
30.127
4.273 .....................
4.281 .....................
....................
30.252
4.282 .....................
30.253
4.300(a) .................
30.260
4.300(b)–(d) ..........
30.261
4.301 .....................
30.262
4.302(a) .................
4.302(b) .................
30.263
30.264
4.242(h)–(i) ............
30.265
30.266
4.304 .....................
30.267
4.305(a) .................
30.268
4.305(b) .................
4.305(c)–(d) ...........
4.306 .....................
30.269
30.270
30.271
4.307(a) .................
30.272
4.307(b) .................
4.308 .....................
30.273
30.274
4.320(a) .................
4.320
4.320 (b)(1)–(3) .....
rwilkins on PROD1PC63 with PROPOSALS
4.303 .....................
4.321
4.320(c) .................
4.320(d) .................
4.321 .....................
4.322 .....................
4.322
4.323
4.324
4.325
4.326
VerDate Aug<31>2005
21:07 Aug 07, 2006
Title
Remarks
Does any distribution of the estate occur while a petition for rehearing is pending?
How will the judge address a petition for rehearing?
Can I submit another petition for rehearing?
.....................................................................................
When does the judge’s decision on a petition for rehearing become final?
Can a closed probate case be reopened?
How will the judge address my petition for reopening?
What happens if the judge reopens the case?
.....................................................................................
When will the decision on reopening become final?
When does the anti-lapse provision apply?
What happens if an heir or devisee knowingly participates in the willful and unlawful killing of the decedent?
.....................................................................................
What happens if property was omitted from the inventory of the estate?
What happens if property was improperly included in
the inventory of the estate?
.....................................................................................
Can a judge allow fees for attorneys representing interested parties?
How must minors or other legal incompetents be
represented?
What land is subject to a tribal purchase option at
probate?
What determinations with regard to a tribal purchase
option will a judge make?
When will BIA furnish a valuation of a decedent’s interests?
When is a final decision issued?
When may a tribe exercise its statutory option to
purchase?
How does a tribe exercise its statutory option to purchase?
May a surviving spouse reserve a life estate when a
tribe exercises its statutory option to purchase?
What if I disagree with the probate decision regarding tribal purchase option?
May I demand a hearing regarding the tribal option
to purchase decision?
What notice of the hearing will the judge provide?
How will the hearing be conducted?
How must the tribe pay for the interests it purchases?
What are the Superintendent’s duties upon payment
by the tribe?
What action will the judge take to record title?
What happens to income from land interests during
pendency of the probate?
Who may appeal a judge’s order on petition for rehearing or reopening?
How to appeal a judge’s order on petition for rehearing or reopening or regarding purchase of interests in a deceased Indian’s trust estate.
What an appeal must contain.
Service of the notice of appeal.
Record on appeal.
Docketing the appeal.
Disposition of the record.
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45191
Sfmt 4702
Plain language.
Plain language.
Clarifies that judge’s jurisdiction over case ends
upon final disposition of petition for rehearing, except for reopening.
Deleted.
New section. Establishes that decision does not become final for 30 days.
Changes time for filing petition and measures from
date error was discovered. Clarifies standard for
reopening.
Plain language.
Eliminates 75-day period for not distributing.
Deleted.
New section.
Plain language.
Changed from ‘‘feloniously taking a testator’s life’’ to
comply with AIPRA language. Expands to apply to
intestate succession. Establishes that person will
be treated as if predeceased.
Deleted.
Plain language.
Plain language.
Deleted.
Plain language. Allows fees for all interested parties,
except creditors.
Plain language.
Plain language.
Plain language.
Plain language.
Plain language.
Plain language.
Plain language.
Plain language.
Plain language.
Plain language.
Plain language.
Plain language.
Plain language.
Plain language.
Plain language.
Plain language.
Plain language.
Plain language.
Plain
Plain
Plain
Plain
Plain
language.
language.
language.
language.
language.
E:\FR\FM\08AUP2.SGM
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Federal Register / Vol. 71, No. 152 / Tuesday, August 8, 2006 / Proposed Rules
V. Public Comments
During the period prior to this
publication, from December 27, 2005 to
March 31, 2006, the Department
received correspondence (e-mails,
letters, and faxes) from tribes and
individual Indians. Of these, the
majority addressed at least one of the
regulations being proposed today. The
remaining addressed only those
regulations that were part of the
December 27, 2005 package sent to the
tribes, but are not part of this proposed
rule. The Department has stored these
comments so that it can review them
when it addresses those remaining
regulations.
These comments raised several issues
that the Department considered in
preparing the drafts for publication as a
proposed rule. A summary of those
issues that were considered in
developing the proposed regulatory
language is provided under a
subheading ‘‘changes to preliminary
drafts’’ under the discussion of each
part in the Part-by-Part Analysis. There
will also be a 60-day public comment
period following this publication.
Subsection B provides directions for
submitting written comments and
information on upcoming tribal
consultations addressing this
rulemaking.
rwilkins on PROD1PC63 with PROPOSALS
A. Comments Received Prior to This
Publication
The Department provided tribal
leaders with preliminary drafts of this
proposed rule in December 2005 and
requested comment by the end of March
2006. Additionally, the Department held
two pre-publication tribal consultation
sessions in February 2006 and March
2006 to obtain input on the preliminary
drafts.
As previously mentioned, the
Department received an overwhelming
number of comments during the
Albuquerque tribal consultation
regarding the volume of regulatory text
and number of preliminary draft
regulations. In response to these
comments, the Department has decided
to first focus on those regulations
required for, or closely related to,
implementation of AIPRA. These
regulations are being published today.
These regulations are a priority for the
Department because they are necessary
to implement AIPRA, which became
fully effective on June 20, 2006. The
remaining regulations that were
distributed as preliminary drafts will be
re-examined and consulted on at a
future date.
Issues raised during tribal
consultations and in the time leading up
VerDate Aug<31>2005
21:07 Aug 07, 2006
Jkt 208001
to publication of this proposed rule that
are specific to one or more regulations
or regulatory sections are addressed in
the Part-by-Part Analysis, below.
B. Directions for Submitting Comments
The regulatory amendments proposed
in this rulemaking include substantive
changes streamlining and standardizing
Department procedures to better serve
beneficiaries and incorporating statutory
law. The amendments also include
revisions that are simply administrative
in nature, including changes to better
meet plain language requirements,
defining acronyms, and updating
personnel and agency titles. Both tribal
and non-tribal members of the public
are invited to make substantive
comment on any of these changes,
whether they be with respect to
substantive or administrative changes.
Two copies of written comments
should be submitted to the address
indicated in the ADDRESSES section of
this notice. Comments may also be
telefaxed to (202) 208–5320 or
submitted by electronic mail (‘‘email’’)
to Michele_F_Singer@ios.doi.gov. For
comments submitted electronically,
please include the number 1076–AE59
in the subject line of the message. All
comments received will be available for
public inspection at the Department of
the Interior, 1849 C Street, NW.,
Washington, DC 20240. All written
comments received by the date
indicated in the DATES section of this
notice and all other relevant information
in the record will be carefully assessed
and fully considered prior to
publication of the final rule. Any
information considered to be
confidential by the commenter must be
so identified and submitted in writing.
The Department of the Interior reserves
the right to determine the confidential
status of the information and to treat it
according to our determination (see 10
CFR 1004.11).
The Department has scheduled an
additional consultation meeting in
Rapid City, South Dakota on July 27,
2006, from 8 a.m. to 5 p.m., at the Best
Western Ramkota Hotel and Conference
Center. The Department also plans to
host two additional consultation
meetings in Billings, Montana on
August 8, 2006, from 8 a.m. to 5 p.m.,
at the Sheraton Billings Hotel and in
Minneapolis, Minnesota on August 10,
2006, from 8 a.m. to 5 p.m., at the
Ramada Mall of America. All tribal and
non-tribal persons interested in this
rulemaking are encouraged to
participate in these consultations.
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VI. Procedural Requirements
A. Regulatory Planning and Review
(Executive Order 12866)
Executive Order 12866 (58 FR 51735,
October 4, 1993) requires Federal
agencies taking regulatory actions to
determine whether that action is
‘‘significant.’’ Agencies must submit
regulatory actions that qualify as
‘‘significant’’ to the U.S. Office of
Management and Budget (OMB) for
review, assess the costs and benefits of
the regulatory action, and fulfill other
requirements of the Executive Order. A
‘‘significant regulatory action’’ is one
that is likely to result in a rule that may
meet one of the following four criteria:
(1) Have an annual effect on the
economy of $100 million or more or
adversely affect, in a material way, the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of the recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
set forth in the Executive Order.
OMB has determined that the rule is
not a significant rule under Executive
Order 12866 because it is not likely to
result in a rule that will meet any of the
four criteria.
(1) The rule will not have an annual
effect on the economy of $100 million or
more or adversely affect, in a material
way, the economy, a sector of the
economy, productivity, competition,
jobs, the environment, public health or
safety, or State, local, or tribal
governments or communities.
This rule will not have an annual
effect on the economy of $100 million
or more, as described below. The
following discussion individually
addresses each Code of Federal
Regulations (CFR) part and significant
changes within each part, where
appropriate. Within the discussion of
each CFR part is a brief statement of the
major changes, the baseline (i.e., the
current state of affairs), an analysis of
the economic effect of the change in
comparison to the baseline alternative,
and a brief conclusion.
25 CFR Part 15
This part governs the processing of
probate estates by BIA. Amendments
will ensure that the BIA compiles
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sufficient information into the probate
file so that when BIA passes the probate
file on to OHA, OHA can properly
administer the probate estate. The
baseline for this analysis is the existing
part 15, which does not incorporate
requirements for certain items of
information to be included in the
probate file.
The Secretary has sole statutory
authority to probate Indian estates. 25
U.S.C. 372; First Moon v. White Tail &
United States, 270 U.S. 243, 46 S. Ct.
246, 70 L. Ed. 565; United States v.
Bowling, 256 U.S. 484, 41 S. Ct. 561, 65
L. Ed. 1054; Lane v. United States, 241
U.S. 201, 36 S. Ct. 599, 60 L. Ed. 956;
Hallowell v. Commons, 239 U.S. 506, 36
S. Ct. 202, 60 L. Ed. 409. Bertrand v.
Doyle, 36 F.2d 351 (10th Cir. 1929). As
such, it is imperative that the Secretary
have all the information necessary to
properly determine the heirs and
distribute estate assets. The alternative
to these amendments (i.e., the baseline)
would deprive OHA of the information
it needs to accurately identify what
property is part of the estate, who the
heirs and devisees are, and how the
property should be distributed among
the heirs and devisees. The recently
enacted AIPRA amendments to ILCA, 25
U.S.C. 2201 et seq., affects the
determination of how property should
be distributed among the heirs and
beneficiaries by allowing certain
persons to purchase interests in
property at probate and consolidation
agreements, and affecting who can
inherit a small fractional interest.
AIPRA therefore directly affects the
determinations that OHA will make and
requires additional information to be
included in the probate file.
The primary benefit of the
amendments is that they ensure that
OHA will have the information it needs
in the probate file to adjudicate Indian
estates. Because this part addresses only
internal processes, and does not impose
any enforceable obligation on persons
outside the BIA, there is no effect to the
outside economy. Amendments to this
part focus on the BIA’s procedures in
compiling a complete probate file, and
addressing what should be included in
that file. No economic impact is
associated with these internal processes.
25 CFR Part 150
The revised Part 150 provides
clarification of the LTRO’s procedures
and increases the ability of the LTRO to
provide services and products to
Indians, tribes, and the public.
Specifically, the amendments describe
the LTRO process for receiving and
recording title instruments, clarify what
services and products LTRO provides,
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and clarify what documents qualify as
title instruments. Currently, the
regulations do not clearly define the
procedures, products, and services of
the LTRO. Finally, the amendments
provide a schedule of fees for nonprobate LTRO products and services
that will be charged.
Those parts of the regulation that
describe the processes, services, and
products of the LTRO will have no
effect on the economy. The amendments
that establish fees for LTRO services and
products are comparable to those fees
charged by local governments for the
comparable services and products.
These amendments merely redistribute
the costs by requiring fees normally
paid for by the public at large to be
borne by the individuals, other than the
excepted categories of individuals,
directly benefiting from the service or
product. Therefore the effect, if any, on
the economy resulting from these
amendments is minimal.
For these reasons, the amendments to
part 150 will not have an effect on the
economy.
25 CFR Part 152
Amendments to this part reorganize
subparts and sections within subparts
for clarity. Procedures for each of the
following conveyances are now
clarified:
• Allowing for conveyances at less
than fair market value under certain
circumstances (see § 152.109);
• Tribal option to purchase where
land is proposed to be conveyed in
unrestricted fee (see § 152.206);
• Conveyances of fractional interests
without tribal consent under certain
circumstances. Also, tribal options to
purchase interests being sold, gifted or
exchanged by individual Indians where
the tribe has enacted a law that imposes
such a requirement (see § 152.209);
• Tribal tract purchases of fractional
interests of non-consenting owners (see
Subpart D at § 152.302); and
• Eligibility for conveying trust and
restricted land (see § 152.203).
Additionally, the amendments
implement ILCA policy goals and
AIPRA provisions allowing for:
• Conveyances in accordance with
tribal land consolidation plans (see
subpart B at § 152.101);
• Consolidation of highly fractionated
tracts by purchase of interests at fair
market value (see subpart E at
§ 152.401); and
• Partition of fractionated lands to
unitize interests (see subpart F at
§ 152.501).
The amendments also detail eligibility
for conveying trust and restricted land,
conveying trust and restricted land at
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less than fair market value, the
attachment and removal of Indian Land
Consolidation Program liens, and the
procedures for mortgages and deeds of
trust.
The baseline for this analysis is the
current part 152, which does not
incorporate AIPRA’s provisions
advancing consolidation goals. The
current part 152 allows for partition of
inherited allotments but does not extend
partition to other tracts of trust or
restricted land or tracts in which
fractional interests are held in
unrestricted fee status.
a. Tribal Land Consolidation Plans
Amendments to part 152 add
provisions regarding tribal land
consolidation plans by providing that
the Secretary will approve only: (1)
Those exchanges and negotiated sales of
tribal land that are made pursuant to an
approved land consolidation plan and
in which the tribe receives at least 90%
of the fair market value or greater; and
(2) those exchanges made in the absence
of a land consolidation plan in which
the tribe receives the fair market value
or greater. Part 152 restricts the tribe’s
use of consideration received from
negotiated sales and exchanges in
accordance with a tribal land
consolidation plan to the purchase of
other lands as described in the tribal
consolidation plan.
These changes from the existing
regulation will assist tribes in reducing
fractionation and strengthening their
land base. A tribal consolidation plan
must include the following elements: a
description of the land; maps depicting
the land to be conveyed and interests to
be purchased; an explanation of how the
plan will reduce fractionation; and an
appropriate tribal authorization. The
cost to the tribe of putting together a
tribal consolidation plan is estimated to
be $2,500. The Secretary is encouraging
all Federally recognized tribes to
prepare a tribal land consolidation plan.
Thus, the total cost resulting from the
plan requirement for each of the 562
tribes will be $1.4 million. However,
tribes will likely prepare and submit the
plans over a period of at least ten years,
resulting in an annual cost to tribes of
$140,000. This cost is slightly
overestimated because some tribes
already have a land consolidation plan.
b. Tribal Option To Purchase Where
Land Is Conveyed in Unrestricted Fee
The amendments grant tribes the
opportunity to purchase trust or
restricted lands being proposed for
transfer out of trust or to unrestricted
status. The benefit of this provision is
that it strengthens tribal land holdings.
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There are no apparent costs related to
this option, as the grantor will receive
consideration for the interest being
conveyed. Additionally, an exception is
provided for those instances where the
interest is part of a family farm.
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c. Consent for Conveyances
The amendments provide that an
owner may convey his or her fractional
interest without the consent of coowners and that owners of 100% of the
interests in a tract do not need the
consent of the tribe. These provisions
grant individuals the right to control
conveyances of their interests. The
benefit of these provisions includes
strengthening individual Indians’
abilities to convey and consolidate
fractional interests. The co-owners share
in this benefit. Additionally,
marketability of the land interests is
increased with removal of the consent
requirement. There is no cost to these
provisions because the land remains in
trust status.
These amendments also require tribal
consent for conveyance of a fractional
interest where the tribe has an approved
tribal probate code restricting the
inheritance rights of the grantee. This
provision strengthens tribal control over
land within its jurisdiction. No apparent
costs are associated with this provision.
d. Tribal Tract Purchases
The tribal tract purchase amendments
implement provisions of AIPRA
authorizing the Secretary to convey the
fractional interests of any nonconsenting trust and restricted owners
to a tribe, where the tribe owns at least
50% of the trust or restricted interests
in the tract or has obtained the consent
of the owners of at least 50% of such
interests.
These provisions increase tribes’
ability to obtain and consolidate
fractional interests. Ultimately, this will
grant the tribes more economic power
through land holdings. Additionally,
individual interests held in trust and
restricted status are subject to
restrictions on transfer. The cost of
restricting free transfer without the
approval of the Secretary or tribe affects
the value of the interest. The value of
land is not affected by the percentage of
consent required, except to the degree
that the time in which transfer occurs
may be lessened by reducing the
percentage required, thus increasing
marketability.
e. Consolidation by Sale of Highly
Fractionated Tracts
Consolidation by sale applies to trust
and restricted lands, on or off
reservation, that are highly fractionated
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parcels. In order to consolidate by sale,
an eligible applicant must obtain certain
consents including consent of the
owners of at least 50% of the undivided
interests in the parcel. Consolidation of
highly fractionated parcels by sale will
increase individual Indians’ and tribal
land holdings, providing them with
greater economic power and use of land.
As stated above, individual interests
held in trust and restricted status are
subject to restrictions on transfer. The
cost of restricting free transfer without
the approval of the Secretary or tribe
affects the value of the interest. The
value of land is not affected by the
percentage of consent required, except
to the degree that the time in which
transfer occurs may be lessened by
reducing the percentage required, thus
increasing marketability.
Allowing consolidation by sale is
expected to reduce the proportion of
highly fractionated interests. The
cumulative transfers of property
achieved via consolidation by sale is not
expected to impact the economy.
However, economic benefits are
expected to accrue by allowing owners
greater economic power and control of
the use of their land.
f. Partition in Kind
This subpart authorizes the Secretary
to subdivide trust and restricted land
with multiple owners into smaller tracts
in which the interests of the owners are
unified or consolidated, where the
owners have been unable to accomplish
such a partition in kind by exchange of
deeds. Any owner of a fractional interest
may apply to the Secretary for a
partition. This new subpart will provide
owners with greater control over their
land; there is no apparent effect on the
economy.
g. Eligibility for Conveying and
Receiving Individually Owned Interests
in Trust or Restricted Status
The amendments clarify that
individual Indians (or their guardians,
etc.) may convey lands and that only
tribes, individual Indians, and other coowners in trust or restricted status may
acquire individually owned trust or
restricted land. This clarification is
made to ensure that individual Indians
without a tribal land base are permitted
to convey and receive interests in trust
or restricted status. This provision will
have no economic effect.
h. Conveyance of Individually Owned
Interests at Less than Fair Market Value
The amendments remove restrictions
on conveying individually owned
interests at less than fair market value,
as long as the grantor is provided with
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information regarding the fair market
value. This will increase the ability of
individuals to sell their land as they
choose. Additionally, these
amendments make land interests more
marketable by reducing the restrictions
on transfer. The cost of obtaining
information on fair market value was
already required, so the amendments
add no new costs.
i. Attachment and Removal of Indian
Land Consolidation Program Liens
These amendments implement AIPRA
provisions regarding the Indian Land
Consolidation program liens, in which a
lien in the amount of the purchase price
attaches to income derived from any
interest purchased through the Indian
Land Consolidation Program. This
provision has no apparent costs as the
lien is removed upon satisfaction.
j. Mortgages and Deeds of Trust
These amendments detail existing
procedures by which the Secretary
approves mortgages or deeds of trust
encumbering individually owned land,
where all of the trust or restricted
interests in a tract are being encumbered
and made subject to foreclosure or sale
in the event of a default on the loan
being secured by the approved
document. There is no quantifiable
effect on the economy because the title
remains in trust even if foreclosure
occurs.
Cumulatively, part 152 will not have
a significant or quantifiable effect on the
economy.
25 CFR Part 179
Amendments to part 179 make two
primary changes with potential to affect
the economy:
• Incorporates AIPRA’s requirement
that life estates after June 20, 2006, will
be ‘‘without regard to waste,’’ meaning
that the life tenant is now entitled to
receipt of all income—including rents
and profits, such as contract bonuses
and royalties, and the interest on
invested principal—from the land.
However, the testator can still specify in
the conveyance document distributions
to the life tenant and remaindermen
different from those established by
AIPRA.
• Changes the discount rate to make
it consistent with the Internal Revenue
Service’s valuations of life estate, which
will generally provide the
remaindermen with more value than
under the current 6% discount rate.
The existing part 179 provides that
the life tenant will have the rights to all
rents and profit, as income, from the
estate, but did not provide that such
rights were ‘‘without regard to waste.’’
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Therefore, the existing part 179 required
the life tenant to ensure that it did not
diminish the estates of the
remainderman in its pursuit of rents and
profits. Additionally, the existing part
179 required contract bonuses to be split
one-half each to the life tenant and
remainderman, whereas now the life
tenant is entitled to the full amount of
the contract bonus.
The first primary change to part 179
is necessary to reflect the AIPRA section
establishing that life estates will be
determined ‘‘without regard to waste,’’
meaning that the life estate holder is
entitled to the receipt of all income,
including bonuses and royalties, from
such land, to the exclusion of
remaindermen. See 25 U.S.C. 2201(10),
2205(a)(3), 2206(a)(2). These
amendments comply with the
provisions of AIPRA with respect to life
estates after June 20, 2006. The testator
can still specify in the conveyance
document distributions to the life tenant
and remaindermen different from those
established by AIPRA. There is no
change with respect to life estates
created before June 20, 2006.
Amendments to the discount rate
make the rate consistent with the
Internal Revenue Service’s valuations of
life estate, which will generally provide
the remaindermen with more value than
under the current 6% discount rate.
The cost of amendments
incorporating ‘‘without regard to waste’’
provisions could be a deferred value of
the remaindermen’s estate. However,
amendments to the discount rate will
generally provide remaindermen with
more value. These amendments may
affect the timing of the distribution of
the value of the land between life
tenants and remaindermen, but will not
affect the economy as a whole.
For these reasons, part 179 will not
have a measurable effect on the
economy.
43 CFR Parts 4 and 30
Most amendments to 43 CFR part 4
(including those incorporated in the
new part 30) are amendments to the
existing 43 CFR 4 subpart D, relating to
the administration of probate estates.
The amendments add provisions to
establish procedures for renouncing an
interest, consolidating interests by
agreement, requesting and conducting a
purchase at probate, determining fair
market value, requesting
disqualification of a judge, and
standardizing the time periods for filing
requests for de novo review and
rehearing to 30, rather than 60, days.
The existing 43 CFR part 4 does not
contain any of the methods for acquiring
interests at probate that have recently
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been established by AIPRA.
Additionally, the current time period for
filing requests for de novo review and
rehearing is 60 days.
Neither the existing part 4 nor the
amendments to part 4 affect the
economy. Because these provisions
relate to the adjudication of probate
estates and will not affect the amount of
money and property within each estate
that is distributed, nor the number of
estates that must be probated, they have
no effect on the economy. For these
reasons, amendments to 43 CFR part 4,
subpart D, and the new 43 CFR part 30
will not affect the economy.
New 25 CFR Part 18 (Tribal Probate
Codes)
The new CFR part addressing tribal
probate codes implements provisions of
ILCA that allow any tribe to adopt a
tribal probate code to govern descent
and distribution of trust and restricted
lands within its reservation or otherwise
subject to its jurisdiction. 25 U.S.C.
2005(a). ILCA provides that the tribe
must submit the tribal probate code to
the Secretary for review and that the
Secretary may not approve tribal
probate codes that contain certain
provisions.
The baseline is the absence of
regulations governing tribal probate
codes. While the ILCA statute had
established requirements for a tribal
probate code and the basics of the
submission and approval process since
1983, there have been no implementing
regulations. With AIPRA, a new uniform
probate code will govern descent and
distribution of trust and restricted
property. This may prompt some tribes
prepare one and may prompt tribes that
already have a tribal probate code to
amend it in light of AIPRA.
AIPRA will govern the descent and
distribution of trust and restricted
property owned by a deceased Indian in
the absence of a will. In the alternative,
approved tribal probate codes will also
govern the distribution of trust property,
but will not directly affect the economy.
These regulations, which implement
statutory provisions for Secretarial
approval of tribal probate codes, do not
affect the economy because tribes were
already authorized to establish tribal
probate codes and statutorily required to
submit such codes to the Secretary for
approval.
For these reasons, the proposed new
CFR part, 25 CFR part 18, will not affect
the economy.
(2) This rule will not create a serious
inconsistency or otherwise interfere with
an action taken or planned by another
agency.
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Implementation of this rule will not
create any serious inconsistencies or
otherwise interfere with an action taken
or planned by another agency because
the Department is the only agency with
authority for handling Indian trust
management issues. Additionally, this
rule will standardize processes within
the Department, to guard against
internal inconsistencies.
(3) This rule will not materially alter
the budgetary impact of entitlements,
grants, user fees, or loan programs or
the rights and obligations of the
recipients thereof.
(a) The revisions 25 CFR part 15
address what must be included in a
probate package and describe how to
file a claim against an estate, but do not
address entitlements, grants, user fees,
or loan programs. Therefore, revisions to
part 15 have no budgetary effects and do
not affect the rights or obligations of any
recipients.
(b) The revisions to 43 CFR part 4
(including those incorporated into the
new 43 CFR part 30) address the
procedures for adjudicating a probate
case and the rights of individual Indians
with respect to a given probate case. The
revisions do not address entitlements,
grants, user fees, or loan programs.
(c) In 25 CFR part 150, the rule
establishes user fees for services and
products provided by LTRO. The
Secretary had the right to charge fees
under the prior regulation, but the
revised part 150 describes the
Secretary’s intent to begin charging fees
to persons who are not excepted. Under
25 U.S.C. 14b, the Secretary may order
that such funds be directed to the
appropriation account for LTRO.
Because the categories of persons who
are exempt from the fees is so large, the
budgetary impact of the revised part 150
will be minimal.
(d) In 25 CFR part 152, the rule
implements AIPRA provisions to allow
for consolidation of highly fractionated
lands, purchase of interests at fair
market value, and consolidation
agreements. These provisions broaden
tribes’ rights to acquire interests through
tribal tract purchases. Where interests
are acquired at the fair market value, the
Secretary may contribute money from
the Acquisition Fund. ILCA established
the Acquisition Fund, authorizing the
Secretary to disburse appropriations to
acquire fractional interests at fair market
value and to collect all revenues from
the lease, permit, or sale of resources
from acquired interests or paid by
Indian landowners. By broadening
tribes’ rights to acquire interests into
trust, revisions to part 152 may increase
use of Acquisition Funds.
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Additionally, subpart K of part 152
allows for the partition of lands into
smaller parcels where the interests are
unified. Under ILCA, grants are
available to successful bidders for
partitions; however, the amendments do
not affect the grants. Because
conveyance of trust and restricted
interests is generally voluntary, these
amendments do not involve
entitlements, grants, user fees, or loan
programs, and therefore do not affect the
budget of the Department or the rights
and obligations of recipients.
(e) In 25 CFR part 179, the respective
rights of a life estate tenant and
remaindermen are changed, as of June
20, 2006. This change entitles the life
tenant to receipt of all income—
including rents and profits, such as
contract bonuses and royalties—from
the land. However, the testator can still
specify in the conveyance document
distributions to the life tenant and
remaindermen different from those
established by AIPRA. The Department
anticipates that this change in rights
will not impact the budget.
(f) The new regulation addressing
tribal probate codes will not materially
alter the Department’s budget because
the regulation merely implements the
existing statutory requirement for
Departmental review of tribal probate
codes; nor does the regulation affect the
rights and obligations of recipients, as
tribes’ probate codes were already
subject to Departmental review.
(4) This rule does not raise novel legal
or policy issues arising out of legal
mandates, the President’s priorities, or
the principles set forth in the Executive
Order.
Most of the regulatory changes
directly implement statutory provisions
and court orders that require certain
action to meet Indian trust management
responsibilities. Specifically, the rule
implements requirements of AIPRA, the
Trust Fund Management Reform Act of
1994 and court orders. The legal and
policy issues related with this
rulemaking have been the subject of
legislation, judicial action, and
consultations with tribes. They have
been thoroughly discussed through the
process of developing and
implementing the Fiduciary Trust
Model, discussed in the ‘‘History of the
Rule’’ section of the preamble.
Thus, the impact of the rule is
confined to the Federal Government,
individual Indians, and tribes and does
not impose a compliance burden on the
economy generally. Accordingly, this
rule is not a ‘‘significant regulatory
action’’ from an economic standpoint,
nor does it otherwise create any
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inconsistencies or budgetary impacts to
any other agency or Federal program.
B. The Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.), requires Federal
agencies to conduct a regulatory
flexibility analysis when publishing a
notice of rulemaking for any proposed
or final rule. The regulatory flexibility
analysis determines whether the rule
will have a significant economic effect
on a substantial number of small entities
(i.e., small businesses, small
organizations, and small governmental
jurisdictions). Indian tribes are not
considered to be small entities for the
purposes of the Act and, consequently,
no regulatory flexibility analysis has
been done to address the effects on
Indian tribes.
Because the proposed rule is limited
to probated estates, land, and assets
within the United States and within
tribal communities, it will not have
significant adverse effects on
competition, employment, investment,
productivity, innovation, or the ability
of the U.S.-based enterprises to compete
with foreign-based enterprises.
Accordingly, this proposed rule will not
have an economic impact on a
substantial number of small entities and
requires no regulatory flexibility
analysis.
C. Small Business Regulatory
Enforcement Fairness Act of 1996
The Small Business Regulatory
Enforcement Fairness Act of 1996
(SBREFA), 5 U.S.C. 804(2), sets criteria
for determining whether a rule is
‘‘major.’’ A rule is ‘‘major’’ if OMB finds
that the rule will result in: (1) An
annual effect on the economy of $100
million or more; (2) a major increase in
costs or prices for consumers,
individual industries, Federal, state, or
local government agencies, or
geographic regions; or (3) significant
adverse effects on competition,
employment, investment, productivity,
innovation, or the ability of U.S.-based
enterprises to compete with foreignbased enterprises.
The proposed rule is not ‘‘major’’
within the meaning of SBREFA because
it is exclusively confined to the Federal
Government, individual Indians, and
tribes, but the proposed rule may
require some limited additional
expenditures by tribes, as discussed in
subsection (h) of the procedural
requirements (Paperwork Reduction
Act) of this preamble.
However, the proposed rule will not
result in the expenditure by State, local,
or tribal governments, in the aggregate,
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or by the private sector of $100 million
or more in any one year.
Because the proposed rule is limited
to probated estates, land, and assets
within the United States and within
tribal communities, it will not have
significant adverse effects on
competition, employment, investment,
productivity, innovation, or the ability
of the U.S.-based enterprises to compete
with foreign-based enterprises.
Accordingly, this proposed rule will not
have an economic impact on a
substantial number of small entities and
requires no regulatory flexibility
analysis.
D. Unfunded Mandates Reform Act of
1995
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), Public
Law 104–4, requires Federal agencies to
assess the effects of their regulatory
actions on state, local, and tribal
governments and the private sector. If
the Federal agency promulgates a
proposed or final rule with ‘‘Federal’’
mandates that may result in
expenditures by state, local, and tribal
governments, in the aggregate, or by the
private sector, of $100 million or more
in any one year, the Federal agency
must prepare a written statement,
including a cost-benefit analysis of the
rule, under section 202 of the UMRA.
The term ‘‘Federal mandate’’ means any
provision in statute or regulation or any
Federal court ruling that imposes ‘‘an
enforceable duty’’ upon state, local, or
tribal governments, and includes any
condition of Federal assistance or a duty
arising from participation in a voluntary
Federal program that imposes such a
duty.
The Department has determined that
the rule does not contain a Federal
mandate that may result in expenditures
of $100 million or more for state, local,
and tribal governments in the aggregate,
or by the private sector in any one year.
The following discussion addresses
each CFR part individually to identify
Federal mandates.
25 CFR Part 15
Most amendments to part 15 address
the internal processes of the BIA (or
tribe that has compacted or contracted
to fulfill probate functions) in compiling
probate files.
• Part 15 contains a mandate for tribal
governments to provide information
when necessary to complete a probate
file. This provision is aimed at requiring
tribes to provide information that is
already readily available to them, such
as family history data.
• Part 15 also contains a mandate for
the public, presumably someone closely
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associated with the decedent, to provide
either a death certificate or other
information regarding the death.
Subsection (h) of the procedural
requirements (Paperwork Reduction
Act) of this preamble states the expected
increase in cost burden on tribal
governments of these mandates, which
is minimal. The opportunity for tribes to
adopt their own tribal probate codes is
voluntary and does not qualify as a
Federal mandate.
25 CFR Part 150
The revised part 150 clarifies LTRO
processes, services, and products. This
part requires persons requesting LTRO
services and products to provide certain
information to allow the LTRO to
identify the property for which the
service or product is being requested.
There is no mandate to obtain LTRO
products or services, so the requirement
to provide information in support of a
request for products and services is not
a Federal mandate.
25 CFR Part 152
Amendments to part 152 provide
tribes and individual Indians with
opportunities to convey and consolidate
their interests in trust or restricted land.
The opportunities to convey land
interests are essentially a voluntary
Federal program. Therefore, the
requirement does not equate to a
Federal mandate.
Part 152 requires applicants to
include certain information in
applications for acquisitions and
conveyances that are available from the
LTRO. Items required under part 152
that may be available from the LTRO
include:
• Maps.
• Legal description of the land.
• Title status of other interests.
• Location of roads and rights of way.
• Location of the land with respect to
other lands in which the applicant has
a trust interest.
However, these items are available
from sources other than LTRO, so these
requirements do not require applicants
to obtain products from the LTRO, and
therefore do not translate into Federal
mandates.
25 CFR Part 179
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Amendments to part 179 do not
impose any duties on persons outside
the Department of the Interior.
43 CFR Parts 4 and 30
Amendments to 43 CFR part 4
(including those incorporated into the
new 43 CFR part 30), related to
adjudication of probate estates, clarify
the process for renouncing an interest
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and allow consolidation agreements and
purchases at probate. These
opportunities are voluntary. The
remainder of the amendments address
OHA adjudication of probate estates and
appeals. These amendments do not
impose any Federal mandates on
individual Indians, tribes, or others
outside the Department of the Interior.
New 25 CFR Part 18 (Tribal Probate
Codes)
The new CFR part addressing tribal
probate codes implements statutory
authority for preparing a tribal probate
code and statutory requirements for
Secretarial approval of tribal probate
codes. Preparation of a tribal probate
code is voluntary; therefore, this
regulation does not impose any Federal
mandates on tribes.
Section 205 of the UMRA requires the
agency to identify and consider a
reasonable number of regulatory
alternatives to the rule and adopt the
least costly, most cost-effective, or least
burdensome alternative that achieves
the objectives of the rule. The
Department has determined that
alternatives to this regulation are
limited by practicality and feasibility,
among other concerns, given that this
regulation is the result of negotiated
working group recommendations
working within the confines of statutory
and judicial mandates. For this reason,
the primary alternative the Department
examined was the baseline (i.e., the
current CFR part or the absence of
regulatory provisions, as appropriate).
With respect to each proposed CFR part,
the Department determined that the
proposed language meets the objectives
of the proposed rule.
Section 203 of the UMRA requires the
agency to develop a small government
agency plan before establishing any
regulatory requirements that may
significantly or uniquely affect small
governments, including tribal
governments. The small government
agency plan must include procedures
for notifying potentially affected small
governments, providing officials of
affected small governments with the
opportunity for meaningful and timely
input in the development of regulatory
proposals with significant Federal
intergovernmental mandates, and
informing, educating, and advising
small governments on compliance with
the regulatory requirements. The
Department has been operating under
tribal consultation procedures that
equate to a small government agency
plan. The Department has developed
these regulations in accordance with
consultation procedures for notifying
tribes, providing tribes with the
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45197
opportunity for meaningful and timely
input on the development of the
regulation, and continues to inform,
educate, and advise tribes on the
contents of the regulation.
E. Governmental Actions and
Interference With Constitutionally
Protected Property Rights (Executive
Order 12630)
This proposed rule does not have
significant ‘‘takings’’ implications. A
taking occurs when private property is
taken for public use without just
compensation or without due process of
law. The proposed rule includes a few
instances where property may be
considered ‘‘taken;’’ however, just
compensation is granted in each case.
For example, 25 CFR part 152 allows a
tribe to acquire land into trust status
with the consent of only 50% of
landowners, but must compensate all
owners for their interests. Additionally,
individual owners may preempt the
tribe’s right to purchase under certain
circumstances. Additionally, for a
consolidation by sale, the Secretary will
seek only the consent of the tribe and of
those owners who maintained a bona
fide residence on the parcel or operated
a bona fide farm, ranch or other
business on the parcel for the preceding
three years. Additional consent is
required where any individual owner’s
undivided interest is worth more than
$1,500 (i.e., consent of owners of at least
50% of the undivided ownership
interest in the parcel). In each of these
cases, even if an owner does not
consent, the owner is provided with just
compensation. The only other
provisions of the proposed rule that may
raise a question as to takings are those
related to procedures for dealing with
heirs or landowners whose whereabouts
are unknown. However, in each of these
cases, the proposed rule establishes the
procedure to ensure that each
individual whose whereabouts are
unknown is afforded due process of law
before being deprived of any specific
real property interest.
F. Federalism (Executive Order 13132)
Executive Order 13132, entitled
‘‘Federalism’’ (64 FR 43255, August 10,
1999), establishes certain requirements
for Federal agencies issuing regulations,
among other agency documents, that
have ‘‘Federal implications.’’ A
regulation has ‘‘Federal implications’’
when it has ‘‘substantial direct effects
on the states, on the relationship
between the national government and
the states, or on the distribution of
power and responsibilities among the
various levels of government.’’ Section 6
of the Executive Order prohibits any
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agency from issuing a regulation that
has Federal implications, imposes
substantial direct compliance costs on
state and local governments, and is not
required by statute. Such a regulation
may be issued only if the Federal
Government provides the funds
necessary to pay the direct compliance
costs incurred by state and local
governments, or the agency consults
with state and local officials early in the
process of developing the proposed
regulation. Further, a Federal agency
may issue a regulation that has
federalism implications and preempts
state law only if the agency consults
with state and local officials early in the
process of developing the proposed
regulation.
This proposed rule does not have
federalism implications because it
pertains solely to Federal-tribal relations
and will not interfere with the roles,
rights, and responsibilities of the States.
The proposed rule primarily provides
means for improving the trust
relationship between the Department
and individual Indians by allowing the
Department to better serve
beneficiaries’’ interests. Additionally,
the Federal government and the tribes
have a government-to-government
relationship that is independent of and
does not affect the Federal government’s
relationship to the states or the balance
of power and responsibilities among
various levels of government. Therefore,
in accordance with Executive Order
13132, it is determined that this
proposed rule will not have sufficient
federalism implications to warrant the
preparation of a federalism assessment.
G. Civil Justice Reform (Executive Order
12988)
Executive Order 12988 (61 FR 4729,
February 7, 1996), section 3(a), requires
Federal agencies to adhere to the
following requirements: (1) Eliminate
drafting errors and ambiguity; (2) write
regulations to minimize litigation; (3)
provide a clear legal standard for
effective conduct rather than a general
standard and promote simplification
and burden reduction. Section 3(b)
specifically requires that executive
agencies make every reasonable effort to
ensure that the regulations: (1) Clearly
specify any preemptive effect; (2) clearly
specify any effect on existing Federal
law or regulation; (3) provide a clear
legal standard for affecting conduct
while promoting simplification and
burden reduction; (4) specify the
retroactive effect, if any; (5) adequately
define key terms; and (6) address other
important issues clearly affecting clarity
and general draftsmanship under any
guidelines issued by the Attorney
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General. Section 3(c) of the Executive
Order 12988 requires agencies to review
regulations in light of the applicable
standards in sections 3(a) and 3(b) to
determine whether they are met or
whether it is unreasonable to meet one
or more of them.
The Department has determined that
this proposed rule will not unduly
burden the judicial system. Significant
portions of the proposed rule will
ensure that the judicial system is not
overly burdened through the
establishment of an administrative
appeal process. For example,
amendments to 43 CFR part 4, which
describes administrative processes for
challenging the outcome of a probate
proceeding, will streamline the probate
adjudication process. Additionally, the
Department has determined that the
proposed rule meets the applicable
standards provided in sections 3(a) and
3(b) of Executive Order 12988. The
Department has incorporated ‘‘plain
language’’ approaches, as described in
OMB’s Writing User-Friendly Topics
referred to in the Federal Register
Document Drafting Handbook.
Department attorneys provided input
throughout the development and
drafting of these regulations to provide
clear legal standards, specify
preemptive effects, specify the effect on
existing Federal laws and regulations,
and otherwise minimize the likelihood
that litigation will result from an
ambiguity in the regulations.
H. Paperwork Reduction Act
The Paperwork Reduction Act (PRA),
44 U.S.C. 3501 et seq., prohibits a
Federal agency from conducting or
sponsoring a collection of information
that requires OMB approval, unless
such approval has been obtained and
the collection request displays a
currently valid OMB control number.
Nor is any person required to respond
to an information collection request that
has not complied with the PRA. In
accordance with 44 U.S.C. 3507(d), BIA
has submitted the information
collection and recordkeeping
requirements of this proposed rule to
OMB for review and approval. Four CFR
parts being proposed today contain
information collection requests: 25 CFR
parts 15, 18, 150 and 152. The following
tables, by part, describe the information
collection requirements in each section
of the proposed rule and any changes
from the current rule.
25 CFR Part 15
Title: Probate of Indian Estates, Except
for Members of the Five Civilized
Tribes.
OMB Control Number: 1076–NEW.
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Requested Expiration Date: Three
years from the approval date.
Summary: This part contains the
procedures that the Secretary of the
Interior follows to initiate the probate of
the trust estate of a deceased person for
whom the Secretary holds an interest as
trust or restricted property. The
Secretary must perform the information
collection requests in this part to obtain
the information necessary to compile an
accurate and complete probate file. This
file will be forwarded to the Office of
Hearings and Appeals (OHA) for
disposition. Responses to these
information collection requests are
required to obtain benefits (e.g., make a
claim against a probated estate) in
accordance with the Secretary’s sole
statutory authority to probate estates
(see 25 U.S.C. 372).
Bureau Form Number: None.
Frequency of Collection: One per
probate.
Description of Respondents: Indians,
businesses, and tribal authorities.
Total Annual Responses: 76,655.
Total Annual Burden Hours:
1,037,433.
The following is an explanation of the
information collection requirements for
25 CFR part 15.
Section 15.4 What are the
requirements for my will?
The proposed rule adds a requirement
for a testator and witnesses self-proving
a will, codicil, or revocation to file
affidavits. The Department has
estimated that approximately 1,000
testators will choose to ‘‘self-prove’’
their wills each year and that it will take
approximately 0.5 hours to make the
affidavit before an official authorized to
administer oaths and to attach the
affidavit to the will = 500 burden hours.
This represents an increase of 500
burden hours due to program change
with no annualized startup, or
operations and maintenance costs.
Likewise, given that approximately
1,000 testators will choose to ‘‘selfprove’’ their wills each year,
approximately 2,000 witnesses will be
required to file supporting affidavits at
0.5 hours each = 1,000 burden hours.
This represents an increase of 1,000
burden hours due to program change
with no annualized startup, or
operations and maintenance costs.
Section 15.104 Does BIA need a death
certificate to prepare a probate file?
The proposed rule adds a requirement
for persons unable to provide a death
certificate to provide as much as they
know about the deceased, including:
The state, city, reservation, location,
date, and cause of death, the last known
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address of the deceased, and names and
addresses of others who may have
information about the deceased. If no
death certificate exists, they must
provide this information in an affidavit.
This information will ensure that BIA
has the information it needs regarding
the identity of the deceased to collect
documents for the probate file. The
requirement already existed to provide
a death certificate or, when unable to
provide a death certificate because none
existed, newspaper articles, obituary, or
death notices and a church or court
record.
The Department estimates that
preparing the affidavit in lieu of
providing a death certificate will impose
an additional 1 hour burden per
response to comply with this section.
The existing estimated burden for
locating and providing the death
certificate is 4 hours per response.
Assuming a respondent provides an
affidavit in lieu of a death certificate
only after spending the 4 hours
searching unsuccessfully for the death
certificate, 5 total burden hours per
response are required to comply with
this section. Assuming approximately
5,850 probates per year, the total burden
will be 5,850 responses × 5 hours per
response = 29,250 burden hours. This
represents an increase of 5,850 hours
due to a programmatic change, with no
annualized startup, or operations and
maintenance costs.
Section 15.105 What other documents
does BIA need to prepare a probate file?
This section lists the items that BIA
needs to prepare a probate file. The
decedent’s family and other
knowledgeable members of the public
are the most likely respondents for this
information. The proposed rule adds
several items of information that must
be included in the probate file. These
additional items are: (1) Adoption and
guardianship papers concerning
decedent’s potential heirs or
beneficiaries; (2) orders requiring
payment of spousal support; (3)
identification of person or entity to
whom an interest is renounced; (4) court
judgments regarding creditor claims;
and (5) place of enrollment and tribal
enrollment or census number of the
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Old CFR
section
New CFR
section
15.4
15.4
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decedent and potential heirs and
beneficiaries.
The Department estimates that
providing these documents will add
approximately 1.25 hours to each
response. Assuming 21,235 respondents
annually × 45.5 hours to complete this
section = 966,192.5 burden hours. This
is an increase of approximately
26,543.75 hours due to a program
change, with no annualized startup, or
operations and maintenance costs.
Section 15.201 Can I get funds from
the decedent’s IIM account for funeral
services?
There has been no change to the
information collection requirements in
this section. The Department estimates
that there will be one request for funeral
expenses per each of the estimated
5,850 probates per year, at an estimated
2 hours per response = 11,700 burden
hours, with no annualized startup, or
operations and maintenance costs.
Section 15.202 If the decedent owed
me money, how do I file a claim against
the estate?
The proposed rule adds a requirement
that creditors provide information on
their claims. Specifically, the rule
requires creditors to file with the
Secretary an affidavit and an itemized
statement of the debt, including copies
of any documents (such as signed notes,
mortgages, account records, billing
records, and journal entries) necessary
to prove the indebtedness.
The Department estimates that, on
average, approximately 6 creditor claims
per probate estate will be filed and that
it will take creditors approximately 0.5
hours to provide this information. The
most recent Paperwork Reduction Act
submission purported to assume that 6
claims per probate estate would be filed,
but at 5,850 probates per year, the
previous assumption of 127,410
respondents appears to be erroneous.
Assuming 35,100 responses (6 claims
per probate estate × 5,850 probate
estates), the Department estimates the
burden hours = 35,100 responses × 0.5
= 17,550 burden hours. This is a
decrease of approximately 46,155 hours
due to a program change, with no
annualized startup, or operations and
maintenance costs.
The proposed rule also adds a
requirement for the person filing a claim
against the estate to file an affidavit. The
Department has determined that this
does not qualify as ‘‘information’’ under
5 CFR 1320.3(h)(1) because it entails no
burden other than that necessary to
identify the claimant, the date, the
claimant’s address, and the nature of the
instrument as a claim against the estate.
Section 15.403 What happens after the
probate decision is made?
This section provides that a request
for de novo review may be filed within
30 days of a probate decision. The
information collection requirements that
had been included in this section have
been moved to 43 CFR 4, but are exempt
under 5 CFR 1320.4(a)(2) because they
relate to the conduct of administrative
actions against specific individuals.
Additionally, all that is required is the
filing of a notice of appeal. This
represents a decrease of 53,088 hours
due to a program change.
Section 15.505 What information must
tribes provide BIA to complete the
probate file?
This new section requires tribes to
provide any information the Secretary
requires to complete the probate file,
such as enrollment or family data. The
information required by the Secretary
will include documents that the tribe
should have readily available. We
assumed that, of the 5,850 probate cases,
at least one decedent would come from
each of the 562 Federally recognized
tribes. On average, a tribe will have to
provide information for approximately
10 of the 5,850 probate cases per year.
We estimate that each tribe will require
2 hours to assist in completing the
probate file × 10 responses annually ×
562 Federal recognized tribes = 11,240
hours to ensure completion of probate
files. This is a new requirement, which
incorporates 11,240 hours as a program
change, with no annualized startup, or
operations and maintenance costs.
Note: The ‘‘Old CFR Section’’ numbers in
the table below are those as of the last
Paperwork Reduction Act submission for 25
CFR part 15 in December 2003.
Total hours
requested
(Annual)*
Currently
approved
hours
Description of info collection requirement
No. of resps
per yr
File affidavit to self-prove
will, codicil, or revocation.
File supporting affidavit to
self-prove will, codicil,
or revocation.
1,000
0.5
500
0
2,000
0.5
1,000
0
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Hours per
resp
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45199
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Explanation of difference
New section requires testator affidavit to selfprove will.
New section requires witness affidavits to selfprove will.
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section
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New CFR
section
Description of info collection requirement
No. of resps
per yr
Total hours
requested
(Annual)*
Hours per
resp
Currently
approved
hours
Explanation of difference
15.101 ...........
15.104
Reporting req.-death certificate.
5,850
5
29,250
23,400
15.106 ...........
15.201
5,850
2
11,700
11,700
15.104 ...........
15.105
Reporting funeral expenses.
Provide probate documents.
21,235
45.5
966,193
939,649
0
0
0
7,887
N/A
N/A
N/A
....................
0
0
0
2,972
35,100
0.5
17,550
63,705
0
0
0
53,088
Provide tribal information
for probate file.2.
5,620
2
11,240
0
..........................................
76,655
....................
1,037,433
1,094,514
15.109 ...........
15.303 ...........
15.202
15.203 ...........
N/A
15.303 ...........
15.202
15.402 ...........
15.403
15.505
Total ......
....................
Provide disclaimer info
(1⁄4).
File claim against estate
(affidavit).
Provide response to
transmittal.
Provide info on creditor
claim (6 per probate).
Provide info for filing appeal.
25 CFR Part 18
Title: Tribal Probate Codes.
OMB Control Number: 1076–NEW.
Requested Expiration Date: Three
years from the approval date.
Summary: This part contains the
procedures that the Secretary of the
Interior follows to review and approve
tribal probate codes and amendments to
tribal probate codes. This part also
explains the procedure the tribe must
follow to begin the approval process for
a tribal probate code or amendment to
the code, as well as dates on when the
tribal probate code becomes effective.
Bureau Form Number: None.
Frequency of Collection: On occasion.
Description of Respondents: Tribal
authorities.
Total Annual Responses: 100.
Total Annual Burden Hours: 50.
The following is an explanation of the
information collection requirements for
25 CFR part 18.
Section 18.4 How does a tribe request
approval for a probate code?
The proposed rule adds a requirement
for a tribe enacting a new tribal probate
code or amending an existing tribal
Total hours
requested
(annual)*
Currently
approved
hours
18.4 ..............
Submit tribal probate code or
amendment.
100
0.5
50
0
Total ......
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Description of info collection
requirement
......................................................
100
....................
50
This requirement has
been deleted.
Decrease to reflect 6
claims per probate.
Now only have to file a
notice of appeal; info
collection requirements
moved to 43 part CFR
4.
New requirement for
tribes to provide enrollment information, upon
request.
0
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Hours per
resp
Amendments delete requirement for birth certificate, but add other
requirements.
Section deleted.
probate code to submit the code or
amendment to the Secretary or
approval. The Department has estimated
that, on average, approximately 100
tribes will submit new codes or amend
their existing codes each year, and that
it will take approximately 0.5 hours to
submit the code or amendment to the
Secretary = 50 burden hours. This
represents an increase of 50 burden
hours due to program change with no
annualized startup, or operations and
maintenance costs.
New CFR
section
25 CFR Part 150
Title: Indian Land Record of Title.
OMB Control Number: 1076–NEW.
Summary: This part establishes the
Land Title and Records Office (LTRO) as
the official record of land records and
title instruments affecting Indian land.
The LTRO protects ownership interests
in trust and restricted Indian land by
recording and maintaining title
No. of resps
per yr
New section requires additional information
where a death certificate is not provided. 3
No change.
documents and providing services and
products to Indians, tribes, and
individuals. The proposed part 150
replaces the existing part in its entirety
to provide clarification of LTRO’s
procedures and increase the ability of
the LTRO to provide services and
products to Indians, tribes, and the
public. The LTRO provides access to
information in the Indian Land Record
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Explanation of difference
New section requires submission
of tribal probate code or
amendment for approval.
of Title to members of the public, except
in those instances where access would
violate law or policy restricting access
to such records.
Bureau Form Number: N/A.
Frequency of Collection: One per
Indian, tribal authority, business or
other non-profit, Federal government, or
other member of the public.
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Description of Respondents: Indians,
tribal authorities, businesses or other
non-profits, Federal government, and
other members of the public.
Total Annual Responses: 12,686.
Total Annual Burden Hours: 12,696.
The following is an explanation of the
information collection requirements for
25 CFR part 150 and any changes from
the current rule.
Total Non-Hour Burden: $907,795.
Section 150.208 How do I correct an
error or omission in a title instrument or
LTRO product or service?
Section 150.208 requires persons who
discover an error or omission in an
LTRO record to provide the LTRO with:
(1) a written description of the error or
omission; and (2) any supporting
documentation.
The Department estimates that a
minimal number of persons and entities
requesting services and products from
LTRO each year will identify an error or
omission in an LTRO record. Most
errors and omissions are identified
through an in-house quality assurance
process wherein the agency filing the
document with the LTRO reviews the
document to identify and address errors
and omissions. The Department also
estimates that it will take approximately
2 hours to write a statement describing
the error or omission and research,
copy, and provide either via mail or in
person any documentation supporting
the claim that an error or omission
exists.
Burden hours = 10 persons and
entities identifying errors or omissions
per year × 2 hours = 20 burden hours.
The total burden costs based on a
$18.52/hour cost estimate multiplied by
the total hourly burden per year =
$370.40. This represents an adjustment
to account for a previously unidentified
information collection request burden,
with no annualized startup, or
operations and maintenance costs.
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Section 150.302(b) How do I order
services and products from the LTRO?
The proposed revisions to part 150
provided in subsection (b) of this
section include a requirement for
persons requesting a product or service
from the LTRO to identify the property
in which they are interested by
providing one of the following: (1) A
legal description of the property; (2) an
identification number for the tract; or (3)
the identification number of the owner
of the tract. The provision does not
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require that this information be
provided in any specific form. The
anticipated respondents include
individuals, tribes, governmental
agencies, and oil, gas, and title abstract
companies.
Each of the LTRO’s products and
services is provided with respect to a
specific tract or tracts or property. In
nearly all cases, the Bureau of Indian
Affairs or the tribal agency requests a
service or product from the LTRO on
behalf of the individual or entity. These
estimates include agency requests on
behalf of the member of the public.
The Department estimates that 6,338
persons or entities request services and
products from LTRO approximately 2
times each year, for a total of 12,686
requests. Persons who own an interest
in the land for which they are
requesting a service or product will
usually have a legal description or
identification number readily available.
For example, most new heirs will have
a legal description of the property in
which they are interested from the
inventory of the probated estate. If the
person received the property by deed,
then the agency would have provided
the person with a deed. However, for
persons who are not co-owners in the
property, this information may be more
difficult to obtain; therefore, the
Department estimates that the person or
entity will be unable to provide this
information for approximately half of
the total requests for LTRO products or
services each year. (See section
150.302(c), which provides applicants
with the option of providing alternate
information). For this reason, the
Department estimates that 3,169 persons
or entities (one half of the total 6,338
respondents) will request services and
products from LTRO approximately 2
times per year and provide the
information requested in this section,
rather than provide the alternate
information permitted by section
150.302(b), for a total of 6,338
responses. The Department is using 1
hour as an average baseline estimate for
the time it will take to obtain
information necessary to identify the
tract of property for which they are
requesting the product or service and
provide that information to the LTRO
either by mail or in person. This average
incorporates the longer time (generally
4–8 hours) to survey to obtain an initial
legal description, as well as the shorter
time (0.5 hours) it takes to obtain the
identification number or other
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45201
identifying information for instruments
that have already been recorded.
Burden hours therefore equal 6,338
requests (3,169 persons or entities
requesting products or services 2 times
a year) × 1 hour per request = 6,338
burden hours. The total burden costs
based on a $18.52/hour cost estimate
multiplied by the total hourly burden
per year = $117,380. This represents an
adjustment to account for a previously
unidentified information collection
request burden, with no annualized
startup costs. Operations and
maintenance costs in the form of fees
are estimated to be $453,897.50 (one
half of the total fees $907,795).
Section 150.302(c) How do I order
services and products from the LTRO?
The proposed revisions to part 150
provided in subsection (c) of this
section include a requirement for
persons requesting LTRO products or
services to provide alternate information
to identify the property if they are
unable to provide the information listed
in section 150.302(b). Section 150.302(c)
allows the applicant to submit any other
information that the LTRO may use to
identify an owner of the tract of land,
including but not limited to: name and
tribal affiliation of an owner, the
recording number of the instrument, or
an allotment number.
Because this information is alternate
information, the Department estimates
that of the estimated 6,338 persons and
entities requesting services and
products from the LTRO 2 times each
year, 3,169 will be unable to provide the
information required by section
152.302(b), and therefore submit the
information in section 150.302(c). The
Department also estimates that it will
take approximately 1 hour to obtain and
provide information necessary to
identify the tract of property for which
they are requesting the product or
service. Burden hours = 3,169 requests
(3,169 persons and entities × 2 times per
year) × 1 hour = 6,338 burden hours.
The total burden costs based on a
$18.52/hour cost estimate multiplied by
the total hourly burden per year =
$117,380. This represents an adjustment
to account for a previously unidentified
information collection request burden,
with no annualized startup costs.
Operations and maintenance costs in
the form of fees are estimated to be
$453,897.50 (one half of the total fees
$907,795).
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New CFR section
Description of info collection
requirement
No. of
respondents
(annual)
Responses
per
respondent
(annual)
Hourly
burden per
response
Total hourly
burden
(annual)*
150.208 .................
Provide written description
and supporting documentation of error or omission.
Provide information to identify
property when requesting
product or service.
Provide other information if information in 150.302(b) is
not available.
10
1
2
20
Adjustment to account for previously unidentified burden.
3,169
2
1
6,338
Adjustment to account for previously unidentified burden.
3,169
2
1
6,338
Adjustment to account for previously unidentified burden.
12,686
....................
....................
12,696
150.302(b) .............
150.302(c) .............
Responses .....
.................................................
rwilkins on PROD1PC63 with PROPOSALS
25 CFR Part 152
Title: Conveyances of Trust or
Restricted Land; Removal of Trust or
Restricted Status.
OMB Control Number: 1076–NEW.
Summary: This part contains the
procedures that the Secretary of the
Interior follows to review and approve
of conveyances of Indian trust and
restricted land and removal of trust and
restricted status from Indian land. The
Secretary must perform the information
collection requests in this part to obtain
the information necessary to complete
the requested transaction. An
‘‘Application for Consolidation by Sale’’
form must be submitted to apply for
consolidations by sale. Responses to
these information collection requests are
required to obtain benefits (e.g.,
complete the requested transaction).
Bureau Form Number: There is a
form, but no number.
Frequency of Collection: Occasional.
Description of Respondents: Indians
and tribal authorities.
Total Annual Responses: 1,250.
Total Annual Burden Hours: 2,103.
The following is an explanation of the
information collection requirements for
25 CFR part 152 and any changes from
the current rule.
Section 152.3 Will the Secretary
provide ownership information?
This section provides that certain
persons, listed in section 152.4, may
request the Land Title and Records
Office (LTRO) to provide the names and
mailing addresses of owners of a parcel
of trust or restricted lands, the location
of the parcel, and the percentage of
undivided interest owned by each
individual by providing a written
request containing:
• A legal description or other
information allowing the parcel to be
identified; and
• A description of how the applicant
meets the requirements of 152.4 (i.e.,
that the applicant is an owner of a
parcel of trust or restricted land on the
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same reservation, the tribe that exercises
jurisdiction over the parcel, a person
eligible for membership in the tribe that
exercises jurisdiction over the parcel, or
a person or entity that is leasing, using,
consolidating—or applying to lease, use,
or consolidate trust or consolidated
lands on that reservation).
The Department estimates that 200
persons and tribes each year will
request the above LTRO information
and that it will take approximately 0.5
hours to compile and provide the
information and draft and provide the
written request.
Burden hours = 200 persons and
tribes requesting LTRO information ×
0.5 hours = 100 total burden hours, at
$15/hour for a cost to the public of
$1,500. This represents a program
change, with no annualized startup, or
operations and maintenance costs.
Explanation of difference
plan to submit a tribal resolution to the
Secretary. Tribes prepare tribal
resolutions as a usual and customary
business practice. However, the
following estimates capture how long it
would take the tribe to copy and
provide the resolution to the
Department. The Department estimates
that, each year, 50 tribes with
consolidation plans will request an
average of 2 sales or exchanges, and that
it will take 0.60 hours to provide a tribal
resolution in support of each sale or
exchange.
Burden hours = 50 tribes × 2 sales and
exchanges × 0.60 hours = 60 total
burden hours, at $15/hour for a cost to
the public of $900. This represents a
program change, with no annualized
startup, or operations and maintenance
costs.
Section 152.102 What must a land
consolidation plan include?
A tribal consolidation plan is a plan
for eliminating fractionation and/or
consolidating tribal land holdings, that
specifies what land or interests are to be
conveyed and what land or interests are
to be purchased with the proceeds of the
sale. Under section 152.105, in order for
the Secretary to take action on the plan,
the tribe must submit the plan to the
Secretary for approval. The Department
estimates that 50 tribes will prepare a
consolidation plan each year, and that it
will take 5 hours for each tribe to
prepare the plan.
Burden hours = 50 tribes × 5 hours =
250 total burden hours, at $15/hour for
a cost to the public of $3,750. This
represents a program change, with no
annualized startup, or operations and
maintenance costs.
Section 152.107 In the absence of an
approved land consolidation plan, how
does a tribe get approval for an
exchange of tribal land?
This section requires a tribe
requesting a sale or exchange in the
absence of an approved tribal land
consolidation plan to submit a tribal
resolution to the Secretary. The
Department estimates that, each year,
100 tribes without consolidation plans
will request an average of 1 sale or
exchange, and that it will take 0.60
hours to provide a tribal resolution in
support of each sale or exchange.
Burden hours = 100 tribes × 1 sale or
exchange × 0.60 hours = 60 total burden
hours, at $15/hour for a cost to the
public of $900. This represents a
program change, with no annualized
startup, or operations and maintenance
costs.
Section 152.105 How does a tribe
receive approval for a sale or exchange
under a land consolidation plan?
This section requires a tribe
requesting a sale or exchange pursuant
to an approved tribal land consolidation
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Section 152.206 How does an owner
initiate a negotiated sale, gift, or
exchange?
This section requires an owner to
submit to the Secretary a written request
for negotiated sale, gift, or exchange
containing various items of information,
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including: a description of the land, the
grantee and his or her tribal affiliation,
any limitations known by the grantor of
the right to convey, any intention to
reserve rights to the land, whether the
owner waives his right to fair market
value, and the terms of the sale, gift, or
exchange. The Department estimates
that 200 tribal and individual Indian
owners will request a negotiated sale,
gift, or exchange each year, at an average
of one request per person, and that it
will take 4.2 hours to make a request in
compliance with this section.
Burden hours = 200 tribes/individual
Indian owners × average of 1 request per
person × 4.2 hours = 840 total burden
hours, at $15/hour for a cost to the
public of $12,600. This represents a
program change, with no annualized
startup, or operations and maintenance
costs.
rwilkins on PROD1PC63 with PROPOSALS
Section 152.217 When can a co-owner
acquire an interest previously acquired
on behalf of a tribe?
Subsection (b) of this section provides
that a co-owner may request notification
when a tribe initially acquires interest
in a given tract under the Indian Land
Consolidation Program. The response to
this request will facilitate the owner’s
ability to exercise the purchase option.
The Department estimates that 50
owners will request notification each
year and that it will take 0.25 hours to
provide the request and contact
information to allow the Department to
notify the co-owner when appropriate.
Burden hours = 50 co-owners who
will request notification x 1 request per
co-owner x 0.25 hours = 12.5 total
burden hours, at $15/hour for a cost to
the public of $188 (rounded up from
$187.5). This represents a program
change, with no annualized startup, or
operations and maintenance costs.
Section 152.219 How does a
transaction affect collection of
construction costs for irrigation
projects?
Subsection (b) of this section provides
that if land is conveyed in fee, the
person acquiring the land in fee must
enter into an agreement to pay the pro
rata share of the construction project
chargeable to the land, all construction
costs that accrue in the future, and all
future charges assessable to the land
based on the annual cost of operations
and maintenance of the irrigation
system. The Department estimates that
200 persons will acquire trust or
restricted land in fee and that it will
take 1 hour to enter into the required
agreement.
Burden hours = 200 persons acquiring
land in fee status × 1 request per person
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× 1 hour = 200 total burden hours, at
$15/hour for a cost to the public of
$3,000. This represents a program
change, with no annualized startup, or
operations and maintenance costs.
Section 152.303 How does a tribe
apply for a parcel purchase?
This section requires tribes who want
to initiate a tribal parcel purchase to
submit an application including various
items of information, including: an
appraisal which establishes the fair
market value of the parcel as of the date
the application is filed; a certified title
report and/or consent forms from the
owners, reflecting that the applicant has
either acquired at least 50% of the trust
or restricted interests in the parcel or
obtained the consent of the owners of at
least 50% of such interests; and a
deposit of the purchase funds needed to
compensate the owners of all of the
outstanding trust or restricted interests
in the parcel, based on the applicant’s
appraisal. The Department estimates
that 50 tribes each year will apply for a
tribal parcel purchase and that it will
take, on average, approximately 2 hours
for each to provide the necessary
applicant and tract information. The
remaining components of the
application are provided by either the
Bureau of Indian Affairs or the Office of
the Special Trustee for American
Indians.
Burden hours = 50 tribes × 1
application per tribe × 2 hours = 100
total burden hours, at $15/hour for a
cost to the public of $1,500. This
represents a program change, with no
annualized startup, or operations and
maintenance costs.
Section 152.403 How do I apply to
consolidate a parcel by sale?
This section allows eligible bidders to
apply to the Secretary for approval on
the Bureau form, ‘‘Application for
Consolidation by Sale,’’ to consolidate
interests in a highly fractionated parcel
by selling interests to one owner. The
Department estimates that 100 eligible
bidders will apply for a consolidation
by sale each year, at an average of one
application per eligible bidder, and that
it will take 0.5 hours to prepare the
application for consolidation by sale.
Burden hours = 100 eligible bidders ×
1 application per eligible bidder × 0.5
hours = 50 total burden hours, at $15/
hour for a cost to the public of $750.
This represents a program change, with
no annualized startup, or operations and
maintenance costs.
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45203
Section 152.412 How does a tribe
reserve its right to match the highest
bid?
This section allows tribes to match
the highest bid from a non-member of
the tribe by submitting a copy of the
tribal law or resolution to the Secretary.
The Department estimates that 50 tribes
will request the opportunity to match
the highest bid to buy property, at an
average of one request per tribe, each
year, and that it will take 0.60 hours to
prepare the resolution in support of the
request.
Burden hours = 50 tribes × 1 request
per tribe × 0.6 hours = 30 total burden
hours, at $15/hour for a cost to the
public of $450. This represents a
program change, with no annualized
startup, or operations and maintenance
costs.
Section 152.503 How can an owner
initiate a partition action?
This section allows owners of
fractional interests in a parcel to apply
to the Secretary for partition of the
parcel in order to consolidate interests
in a smaller parcel. The application for
partition must contain the legal
descriptions, appraisals, and
ownerships of the tract to be partitioned
with smaller resulting tracts. The
Department estimates that 50 owners
each year will submit an application for
partition, at an average of one
application per owner, and that, on
average, it takes approximately 2 hours
to provide the necessary applicant and
tract information. The Bureau of Indian
Affairs provides the remaining
information necessary for the
transaction, including the legal
description and the owners of the tract,
while the Office of Appraisal Services
provides the appraisal.
Burden hours = 50 tribes × 1
application per tribe × 2 hours = 100
total burden hours, at $15/hour for a
cost to the public of $1,500. This
represents a program change, with no
annualized startup, or operations and
maintenance costs.
Section 152.602 How do owners
submit an application for approval of a
mortgage or deed of trust?
This section allows the owner of the
proposed mortgagee or beneficiary to
submit an application for approval of a
mortgage or deed of trust containing the
executed mortgage or deed of trust, the
promissory note, other documents
regarding remedy in the case of default,
an appraisal, the loan application, a
credit report, title reports, and any
necessary environmental or historic
preservation documentation. The
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Department estimates that 100 owners
will request a mortgage or deed of trust,
at an average of one request per owner,
and that it will take approximately 3
hours to complete the application.
Burden hours = 100 owners × 1
application per owner × 3 hours = 300
total burden hours, at $15/hour for a
Hours per
resp
Total hours
requested
(Annual)*
200 ......................
0.5
100
0
Program change.
50 ........................
100 ......................
5
0.0160
250
60
0
0
Program change.
Program change.
100 ......................
0.60
60
0
Program change.
200 ......................
4.2
840
0
Program change.
50 ........................
0.25
0
Program change.
200 ......................
1
200
0
Program change.
50 ........................
100 ......................
2
0.5
100
50
0
0
Program change.
Program change.
50 ........................
0.60
30
0
Program change.
50 ........................
100 ......................
2
3
100
300
0
0
Program change.
Program change.
..................
2,103
0
New CFR
section
Description of info collection
requirement
No. of resps per
yr
152.3 .............
152.503 .........
152.602 .........
Request for information on
parcel owners.
Tribal land consolidation plan
Tribal resolution requesting
sale or exchange.
Tribal resolution in absence of
land consolidation plan.
Negotiated sale, gift, or exchange.
Request for notice of tribal acquisition.
Agreement for payments with
fee conveyance.
Tribal parcel purchase ............
Consolidation by sale application.
Copy of tribal law or resolution stating intent to match
high bid.
Partition ..................................
Mortgage or Deed of Trust .....
Total .......
.................................................
Responses =
1,250.
152.102 .........
152.105 .........
152.107 .........
152.206 .........
152.217(b) ....
152.219(b) ....
152.303 .........
152.403 .........
rwilkins on PROD1PC63 with PROPOSALS
152.412 .........
The Department invites comments on
the information collection requirements
of this proposed rule. You may submit
comments to the Desk Officer for the
Department of Interior by e-mail at
OIRA_DOCKET@omb.eop.gov or by
facsimile at (202) 365–6566. Please also
send a copy of your comments to BIA
at the location specified under the
heading ADDRESSES.
You can receive a copy of BIA’s
submission to OMB, including a copy of
the form related to 25 CFR section
152.403, by contacting the person listed
in the FOR FURTHER INFORMATION
CONTACT section, or by requesting the
information from the BIA Information
Collection Clearance Officer, 625
Herndon Parkway, Herndon, VA 20970.
Comments should address: (1)
Whether the collection of information is
necessary for the proper performance of
the Program, including the practical
utility of the information to the BIA; (2)
the accuracy of the BIA’s burden
estimates; (3) ways to enhance the
quality, utility, and clarity of the
information collected; and (4) ways to
minimize the burden of collection of
information on the respondents,
including the use of automated
collection techniques or other forms of
information technology.
Organizations and individuals who
submit comments on the information
collection requirements should be aware
that the Department keeps such
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Jkt 208001
cost to the public of $4,500. This
represents a program change, with no
annualized startup, or operations and
maintenance costs.
12.5
comments available for public
inspection during regular business
hours. If you wish to have your name
and address withheld from public
inspection, you must state this
prominently at the beginning of any
comments you make. The Department
will honor your request to the extent
allowable by law. We may withhold the
information for other reasons.
I. National Environmental Policy Act
(NEPA)
The National Environmental Policy
Act of 1969 (NEPA) requires Federal
agencies to perform an environmental
assessment or environmental impact
statement for all ‘‘major Federal
actions.’’ This rule does not constitute a
major Federal action significantly
affecting the quality of the human
environment. An environmental
assessment is not required because any
environmental effects of this rule are too
broad, speculative, or conjectural to
lend themselves to meaningful analysis.
Further, the Federal actions under the
proposed rule (e.g., approval or
disapproval of leases of Indian lands),
where they qualify as ‘‘major Federal
actions,’’ will be subject to the NEPA
process at the time of the action itself,
either collectively or case-by-case.
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Currently
approved
hours
Explanation of
difference
J. Government-to-Government
Relationships With Tribes (Executive
Order 13175)
In accordance with the President’s
memorandum of April 29, 1994,
‘‘Government-to-Government Relations
with Native American Tribal
Governments,’’ Executive Order 13175
(59 FR 22951, November 6, 2000) and
512 DM2, we have evaluated the
potential effects on Federally recognized
Indian tribes and Indian trust assets and
have identified potential effects. The
Department has engaged tribal
government representatives in
developing the Fiduciary Trust Model,
which served as the basis for this
rulemaking, has provided tribal
government representatives with
advance copies of this proposed rule,
and provides additional notice to tribal
government through this Federal
Register notice. Subsequently, the
Department will follow Departmental
protocols for consulting with tribal
governments on this proposed rule.
Specifically, the Department is planning
an additional three consultation
meetings to exchange information with
tribes on the proposed rule and
potential impacts, and plans to carefully
review comments received by tribal
government officials. These actions
enable tribal officials and the affected
tribal constituency throughout Indian
country to have meaningful and timely
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input in the development of the final
rule, while reinforcing positive
intergovernmental relations with tribal
governments.
K. Energy Effects (Executive Order
13211)
Executive Order 13211 addresses
regulations that significantly affect
energy supply, distribution, and use.
The Executive Order requires agencies
to prepare Statements of Energy Effects
when undertaking certain actions. In
accordance with this Executive Order,
this rule does not have a significant
effect on the nation’s energy supply,
distribution, or use. The proposed rule
is restricted to addressing assets held in
trust or restricted status for individual
Indians or tribes.
List of Subjects
25 CFR Part 15
Estates, Indians–law.
25 CFR Part 18
Estates, Indians–lands.
25 CFR Part 152
Indians, Indians–lands.
43 CFR Part 4
Administrative practice and
procedure, Claims.
43 CFR Part 30
Administrative practice and
procedure, Claims, Equal access to
justice, Estates, Indians, Lawyers.
For the reasons given in the preamble,
the Department of the Interior proposes
to amend chapter I of title 25 and part
4 of title 43 for the Code of Federal
Regulations as set forth below.
Title 25—Indians
Chapter I—Bureau of Indian Affairs,
Department of the Interior
1. Revise part 15 to read as follows:
PART 15—PROBATE OF INDIAN
ESTATES, EXCEPT FOR MEMBERS OF
THE FIVE CIVILIZED TRIBES
Sec.
rwilkins on PROD1PC63 with PROPOSALS
Subpart B—Starting the Probate Process
15.101 When should I notify BIA of a
death?
15.102 Who may notify BIA of a death?
15.103 How do I begin the probate process?
15.104 Does BIA need a death certificate to
prepare a probate file?
15.105 What other documents does BIA
need to prepare a probate file?
15.106 Can a probate case be opened when
an owner of an interest has been absent?
15.107 Who prepares a probate file?
15.108 If the decedent was not an enrolled
member of a tribe or was a member of
more than one tribe, who prepares the
probate file?
Subpart D—Preparing the Probate File
15.301 What will BIA do with the
documents that I provide?
15.302 What items must BIA include in the
probate file?
15.303 When is a probate file complete?
25 CFR Part 179
Estates, Indians–lands.
Subpart A—Introduction
15.1 What is the purpose of this part?
15.2 What terms do I need to know?
15.3 Who can make a will disposing of trust
or restricted land or trust personalty?
15.4 What are the requirements for my will?
15.5 Can I revoke my will?
15.6 Can my will be deemed revoked by the
operation of the law of any state?
21:07 Aug 07, 2006
What is a self-proved will?
Can I make my will, codicil, or
revocation self-proved?
15.9 Do affidavits for my self-proved will,
codicil, or revocation have to be in a
certain format?
15.10 Will the Secretary probate all the land
or assets in an estate?
15.11 How does the probate process work?
15.12 What happens if assets in a trust
estate may be diminished or destroyed
while the probate is pending?
Subpart C—Obtaining Emergency
Assistance and Filing Claims
15.201 Can I get funds from the decedent’s
IIM account for funeral services?
15.202 If the decedent owed me money,
how do I file a claim against the estate?
25 CFR Part 150
Indians, Indians–lands.
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15.7
15.8
Jkt 208001
Subpart E—Probate Processing and
Distributions
15.401 What happens after BIA prepares the
probate file?
15.402 What happens after the probate file
is referred to OHA?
15.403 What happens after the probate
decision is made?
Subpart F—Information and Records
15.501 How can I find out the status of a
probate?
15.502 Who owns the records associated
with this part?
15.503 How must records associated with
this part be preserved?
15.504 Who may inspect these records?
15.505 What information must tribes
provide BIA to complete the probate file?
15.506 How does the Paperwork Reduction
Act affect this part?
Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9,
372–74, 410; 44 U.S.C. 3101 et seq.
Cross Reference: For special rules applying
to proceedings in Indian Probate
(Determination of Heirs and Approval of
Wills, Except for Members of the Five
Civilized Tribes and Osage Indians),
including hearings and appeals within the
jurisdiction of the Office of Hearings and
Appeals, see title 43, Code of Federal
Regulations, part 4, subpart D; Funds of
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45205
deceased Indians other than the Five
Civilized Tribes, see title 25 Code of Federal
Regulations, part 115.
Subpart A—Introduction
§ 15.1
What is the purpose of this part?
This part contains the procedures that
we follow to initiate the probate of the
trust estate of a deceased person for
whom we hold an interest as trust or
restricted land or trust personalty. This
part tells you how to file the necessary
documents to probate the trust estate.
This part also describes how probates
will be processed by BIA, and how
probates will be sent to the Office of
Hearings and Appeals (OHA) for
disposition.
§ 15.2
What terms do I need to know?
As used in this part:
Act means the Indian Land
Consolidation Act and its amendments,
including Public Law 108–374, the
American Indian Probate Reform Act of
2004 (AIPRA).
Administrative law judge (ALJ) means
an administrative law judge with OHA
appointed under the Administrative
Procedure Act, 5 U.S.C. 3105.
Agency means:
(1) The Bureau of Indian Affairs (BIA)
agency office, or any other designated
office in BIA, having jurisdiction over
trust or restricted land and trust
financial assets; and
(2) Any office of a tribe that has
entered into a contract or compact to
fulfill the probate function under 25
U.S.C. 450f or 458cc.
Attorney Decision Maker (ADM)
means a licensed attorney with OHA
who conducts a summary probate
proceeding and renders a decision that
is subject to de novo review by an
administrative law judge or Indian
probate judge.
BIA means the Bureau of Indian
Affairs within the Department of the
Interior.
Child includes any adopted child.
Codicil means a supplement or
addition to a will, executed with the
same formalities as a will. It may
explain, modify, add to, or revoke
provisions in an existing will.
Consolidation agreement means a
written agreement under the provisions
of 25 U.S.C. 2206(e) or 2206(j)(9), by
which a decedent’s heirs and devisees
consolidate interests in trust or
restricted land, entered during the
probate process, approved by the judge,
and implemented by the probate order.
Creditor means any individual or
entity that has a claim for payment from
a decedent’s estate.
Day means a calendar day, unless
otherwise stated.
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Decedent means a person who is
deceased.
Decision or order (or decision and
order) means a written document issued
by a judge making determinations as to
heirs, wills, devisees, and the claims of
creditors, and ordering distribution of
trust or restricted land or trust
personalty. Decision or order also means
the decision issued by an attorney
decision maker in a summary probate
proceeding.
Department or DOI means the
Department of the Interior.
Devise means a gift of property by
will. Also, to give a gift of property by
will.
Devisee means a person or entity that
receives property under a will.
Eligible heir means for the purposes of
the Act, 25 U.S.C. 2206, any of a
decedent’s children, grandchildren,
great grandchildren, full siblings, half
siblings by blood, and parents who are:
(1) Indian;
(2) Lineal descendents within two
degrees of consanguinity of an Indian;
or
(3) Owners of a trust or restricted
interest in a parcel of land for purposes
of inheriting, by descent, renunciation,
or consolidation agreement, another
trust or restricted interest in such parcel
from the decedent.
Estate means the trust or restricted
land and trust personalty owned by the
decedent at the time of death.
Form OHA–7 means a form (or an
automated database equivalent) used by
BIA to record data for heirship and
family history, including but not limited
to information on any wills, trust and
restricted land, marriages, births,
deaths, adoptions, and names and
addresses of all interested parties.
Formal probate proceeding means a
trial-type proceeding, conducted by a
judge, in which evidence is obtained
through the testimony of witnesses and
the receipt of relevant documents.
Heir means any individual or entity
eligible to receive trust or restricted land
or trust personalty from a decedent in
an intestate proceeding.
I means, in question headings, an
heir, a devisee, an owner of trust or
restricted land or trust personalty, or a
creditor.
Individual Indian Money (IIM)
account means funds held in trust in an
individual Indian money (IIM) account
by OST or by a tribe performing this
function under a contract or compact.
These funds also are defined as the
‘‘trust personalty.’’
Indian means, for the purposes of the
Act, 25 U.S.C. 2206:
(1) Any person who is a member of a
federally recognized Indian tribe, is
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eligible to become a member of any
Indian tribe, or is an owner (as of
October 27, 2004) of a trust or restricted
interest in land;
(2) Any person meeting the definition
of Indian under 25 U.S.C. 479; and
(3) With respect to the inheritance
and ownership of trust or restricted land
in the State of California under 25
U.S.C. 2206, any person described in
paragraph (1) or (2) of this definition or
any person who owns a trust or
restricted interest in a parcel of such
land in that State.
Indian probate judge (IPJ) means a
licensed attorney, employed by OHA,
other than an ALJ, to whom the
Secretary has delegated the authority to
hear and decide Indian probate cases
under 5 U.S.C. 556(b).
Interested party means:
(1) Any potential or actual heir;
(2) Any devisee under a will;
(3) Any person or entity asserting a
claim against a decedent’s estate;
(4) Any tribe having a statutory option
to purchase the trust or restricted
property interest of a decedent; or
(5) A co-owner exercising a purchase
option.
Intestate means the decedent died
without a valid will.
Judge means an administrative law
judge (ALJ) or Indian probate judge (IPJ).
LTRO means the Land Titles and
Records Office within BIA.
OHA means the Office of Hearings
and Appeals within the Department of
the Interior.
OST means the Office of the Special
Trustee for American Indians within the
Department of the Interior.
Probate means the legal process by
which applicable tribal, Federal, or state
law that affects the distribution of a
decedent’s estate is applied to:
(1) Determine the heirs;
(2) Determine the validity of wills and
determine devisees;
(3) Determine whether claims against
the estate will be paid from trust funds;
and
(4) Order the transfer of any trust or
restricted land or trust personalty to the
heirs, devisees, or other persons or
entities entitled by law to receive the
funds or land.
Probate staff means a DOI or tribal
employee who is trained in probate
matters and who is responsible for
preparing the probate file.
Purchase option at probate refers to
the process by which eligible purchasers
can purchase a decedent’s interest
during the probate proceeding.
Restricted property means real
property, the title to which is held by an
Indian but which cannot be alienated or
encumbered without the Secretary’s
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consent. For the purpose of probate
proceedings, restricted property is
treated as if it were trust property.
Except as the law may provide
otherwise, the term ‘‘restricted
property’’ as used in this subpart does
not include the restricted lands of the
Five Civilized Tribes of Oklahoma or
the Osage Nation.
Secretary means the Secretary of the
Interior or an authorized representative.
The authorized representative of the
Secretary for the performance of probate
functions is BIA. The authorized
representative for adjudication of
probate is OHA.
Summary probate proceeding means
the consideration of a probate file
without a hearing and on the basis of
the probate file received from BIA. A
summary probate proceeding may be
conducted if the estate involves only
trust personalty and does not exceed the
amount of $5,000 on the date of the
decedent’s death.
Superintendent means a BIA
Superintendent or other BIA official,
including a field representative or one
holding equivalent authority.
Testate means the decedent executed
a valid will.
Trust personalty means all funds and
securities of any kind which are held in
trust in an IIM account or otherwise
supervised by the Secretary.
Trust property means real or personal
property, or an interest therein, for
which the United States holds the title
to the property in trust for the benefit of
an individual Indian or tribe.
We or us means the Secretary, an
authorized representative of the
Secretary, or the authorized employee or
representative of a tribe performing
probate functions under a contract or
compact approved by the Secretary. The
Secretary may change the designation of
the authorized representative at any
time.
Will means a written document
executed with the required formalities
and intended to pass the testator’s
property upon death.
You means, in regulatory text, an heir
or devisee or owner of trust or restricted
property or trust personalty, unless a
specific section defines ‘‘you’’ to have
another meaning.
§ 15.3 Who can make a will disposing of
trust or restricted land or trust personalty?
Any person 18 years of age or over
and of testamentary capacity, who has
any right, title, or interest in trust or
restricted land or trust personalty, may
dispose of trust or restricted land or
trust personalty by will.
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§ 15.4
will?
What are the requirements for my
You must date and execute your will
in writing and have it attested by two
disinterested adult witnesses.
§ 15.5
Can I revoke my will?
Yes. You may revoke your will at any
time. You may revoke your will by any
means authorized by tribal or Federal
law, including executing a subsequent
will or other writing with the same
formalities as are required for execution
of a will.
§ 15.6 Can my will be deemed revoked by
operation of the law of any state?
No will that is subject to the
regulations of this subpart will be
deemed to be revoked by operation of
the law of any State.
§ 15.7
What is a self-proved will?
A self-proved will employs an
affidavit, attached to the will, signed by
the testator and the witnesses before an
officer authorized to administer oaths,
certifying that they complied with the
requirements of execution of the will.
Using an affidavit executed at the same
time as the will avoids the need for the
testimony of the will witnesses at
probate to prove the execution of the
will.
§ 15.8 Can I make my will, codicil, or
revocation self-proved?
Yes. A will, codicil, or revocation may
be made self-proved as provided in this
section.
(a) A will, codicil, or revocation
executed as provided in § 15.4 may be
made self-proved by the testator and
attesting witnesses at the time of its
execution.
(b) The testator and the attesting
witnesses must make these affidavits
before an officer authorized to
administer oaths, and the affidavits
must be attached to the will.
§ 15.9 Do affidavits for my self-proved will,
codicil, or revocation have to be in a certain
format?
rwilkins on PROD1PC63 with PROPOSALS
Yes, the affidavits of the testator and
attesting witnesses must be in
substantially the following form and
content.
(a) Format for testator’s affidavit:
Tribe of llll or
State of llll
County of llll ss.
I, llll, being first duly sworn, on oath,
depose and say: That I am an llll
(enrolled or unenrolled) member of the
llll Tribe of Indians in the State of
llll; that on the l day of l , 20l, that
I requested llll and llll to act as
witnesses thereto; that I declared to said
witnesses that said instrument was my last
will and testament; that I signed said will in
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the presence of both witnesses; that they
signed the same as witnesses in my presence
and in the presence of each other; that said
will was read and explained to me (or read
by me), after being prepared and before I
signed it, and it clearly and accurately
expresses my wishes; and that I willingly
made and executed said will as my free and
voluntary act and deed for the purposes
therein expressed.
lllllllllllllllllllll
Testator
(b) Format for attesting witnesses’
affidavit:
We, llll and llll, each being first
duly sworn, on oath, depose and state: That
on the l day of l, 20l, l, a member of
the llll Tribe of Indians of the State of
llll, published and declared the
attached instrument to be his/her last will
and testament, signed the same in the
presence of both of us, and requested both of
us to sign the same as witnesses; that we, in
compliance with his/her request, signed the
same as witnesses in his/her presence and in
the presence of each other; that said testator
was not acting under duress, menace, fraud,
or undue influence of any person, so far as
we could ascertain, and in our opinion was
mentally capable of disposing of all his/her
estate by will.
lllllllllllllllllllll
Witness
lllllllllllllllllllll
Witness
Subscribed and sworn to before me thislday
of l, 20l, by llll testator, and by
llll and llll, attesting witnesses.
lllllllllllllllllllll
lllllllllllllllllllll
(Title)
§ 15.10 Will the Secretary probate all the
land or assets in an estate?
(a) We will probate only the trust or
restricted land or trust personalty in an
estate.
(b) We will not probate the following
property:
(1) Real or personal property other
than trust or restricted land or trust
personalty in an estate of a decedent;
(2) Restricted land derived from
allotments made to members of the Five
Civilized Tribes (Cherokee, Choctaw,
Chickasaw, Creek and Seminole) in
Oklahoma; and
(3) Restricted interests derived from
allotments made to Osage Indians in
Oklahoma (Osage Nation) and Osage
headright interests owned by Osage
decedents.
(c) We will probate that part of the
estate of a deceased member of the Five
Civilized Tribes or Osage Nation who
owns a trust interest in land or a
restricted interest in land derived from
an individual Indian other than the Five
Civilized Tribes or Osage Nation.
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§ 15.11
work?
45207
How does the probate process
The basic steps of the probate process
are:
(a) We find out about a person’s death
(see subpart B of this part for details);
(b) We prepare a probate file that
includes documents sent to the agency
(see subpart C of this part for details);
(c) We refer the completed probate file
to OHA for assignment to a judge or
ADM (see subpart D of this part for
details); and
(d) The judge or ADM decides how to
distribute any trust or restricted land
and/or trust personalty, and we make
the distribution (see subpart D of this
part for details).
§ 15.12 What happens if assets in a trust
estate may be diminished or destroyed
while the probate is pending?
(a) This section applies if an
interested party or BIA:
(1) Learns of the death of a person
entitled to trust or restricted property;
and
(2) Determines that an emergency
exists and the assets in the trust estate
may be significantly diminished or
destroyed before the final decision and
order of a judge in a probate case.
(b) The interested party or BIA may:
(1) Request the immediate assignment
of a judge or ADM for the probate case;
(2) Transmit or request the transfer of
a probate file to OHA containing
sufficient information on potential
interested parties and documentation
concerning the emergency alleged for a
judge to consider emergency relief in
order to preserve estate assets; and
(3) Request an expedited hearing or
consideration of ex parte relief to
prevent impending or further loss or
destruction of trust assets.
(c) The Superintendent or other
authorized representative of BIA is
granted the standing necessary to
request relief under this section.
Subpart B—Starting the Probate
Process
§ 15.101
death?
When should I notify BIA of a
There is no deadline for notifying us
of a death.
(a) Notify us as provided in § 15.103
to assure timely distribution of the
estate.
(b) If we find out about the death of
a person and if the decedent meets the
criteria in § 15.3, we will initiate the
process to collect the necessary
documentation.
§ 15.102
Who may notify BIA of a death?
Anyone may notify us of a death.
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§ 15.103 How do I begin the probate
process?
As soon as possible, contact any of the
following to inform us of the decedent’s
death:
(a) The BIA agency or regional office
nearest to where the decedent was
enrolled;
(b) Any BIA agency or regional office;
(c) The tribe where the decedent was
enrolled; or
(d) The Trust Beneficiary Call Center
at (888) 678–6836 ext. 0.
§ 15.104 Does BIA need a death certificate
to prepare a probate file?
(a) We require a certified copy of the
death certificate if a certified copy
exists. If necessary, we will make a copy
from your certified copy for our use and
return your copy.
(b) If a certified copy of the death
certificate does not exist, you must
provide as much information as you can
concerning the deceased, such as:
(1) The State, city, reservation,
location, date, and cause of death;
(2) The last known address of the
deceased; names and addresses of others
who may have information about the
deceased; and any other information
available concerning the deceased, such
as newspaper articles, obituary, or death
notices or a church or court record.
(c) If no certified copy of a death
certificate exists, we require an affidavit
stating as much of the information set
forth in paragraph (b) of this section as
is available, as well as any other
information available concerning the
decedent.
rwilkins on PROD1PC63 with PROPOSALS
§ 15.105 What other documents does BIA
need to prepare a probate file?
In addition to the certified copy of a
death certificate or other reliable
evidence of death listed in § 15.104, we
need the following information and
documents:
(a) Originals or copies of all wills,
codicils, and revocations, or other
evidence that a will may exist;
(b) Social Security number of the
decedent;
(c) The place of enrollment and the
tribal enrollment or census number of
the decedent and potential heirs or
devisees;
(d) Current names and addresses of
the decedent’s potential heirs and
devisees;
(e) Any sworn statements regarding
the decedent’s family, including any
statements of paternity or maternity;
(f) Any statements renouncing an
interest in the estate including
identification of the person or entity in
whose favor the interest is renounced, if
any;
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(g) A list of known claims by creditors
of the decedent against the estate and
their addresses, including copies of any
court judgments; and
(h) Documents, certified if possible,
from the appropriate authorities
concerning the public record of the
decedent, including but not limited to,
any:
(1) Marriage licenses of the decedent,
(2) Divorce decrees of the decedent,
(3) Adoption and guardianship
records concerning the decedent or the
decedent’s potential heirs or devisees;
(4) Use of other names by the
decedent, including copies of name
changes by court order; and
(5) Order requiring payment of child
support or spousal support.
§ 15.108 If the decedent was not an
enrolled member of a tribe or was a member
of more than one tribe, who prepares the
probate file?
§ 15.106 Can a probate case be opened
when an owner of an interest has been
absent?
(a) You may ask us for up to $1,000
from the decedent’s IIM account in the
following situations:
(1) You are responsible for making the
funeral arrangements on behalf of the
family of a decedent who had an IIM
account;
(2) You have an immediate need to
pay for funeral arrangements before
burial; and
(3) The decedent’s IIM account
contains more than $2,500 on the date
of death.
(b) You must apply for assistance
under paragraph (a) of this section and
submit to us an original itemized
estimate of the cost of the service to be
rendered and the identification of the
service provider.
(c) We may approve reasonable costs
up to $1,000 that are necessary for the
burial services, taking into
consideration:
(1) The total amount in the account;
(2) The number of potential heirs or
beneficiaries of whom BIA is aware;
(3) The amount of any claims against
the account of which BIA is aware;
(4) The availability of non-trust funds;
and
(5) Any other relevant factor.
(d) We will make payments directly to
the providers of the services.
(a) A probate case may be opened
when information is provided to us that
an owner of an interest in trust or
restricted land or trust personalty has
been absent without explanation for a
period of at least six years.
(b) When we receive that information,
we will begin an investigation into the
unexplained absence, and will attempt
to locate the absent person. We may:
(1) Search available electronic
databases;
(2) Inquire into other published
information sources such as telephone
directories and other available
directories;
(3) Examine BIA land title and lease
records;
(4) Examine the IIM account ledger for
disbursements from the account; and
(5) Engage the services of an
independent firm to conduct a search
for the absent owner.
(c) When we have completed our
investigation, if we are unable to locate
the absent person, we will open a
probate case and prepare a file that will
include all the documentation
developed in the search.
(d) We may file a claim in the probate
case to recover the reasonable costs
expended to contract with an
independent firm to conduct the search.
§ 15.107
Who prepares a probate file?
The probate staff at the agency or tribe
where the decedent is an enrolled
member will prepare the probate file in
consultation with the potential heirs or
devisees who can be located, and with
other people with information about the
decedent or the estate.
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Unless otherwise provided by Federal
law, the agency that has jurisdiction
over the tribe with the strongest
association with the decedent will serve
as the home agency and will prepare the
probate file if the decedent either:
(a) Was not an enrolled member of a
tribe but owns interests in trust or
restricted land or trust personalty; or
(b) Was a member of more than one
tribe.
Subpart C—Obtaining Emergency
Assistance and Filing Claims
§ 15.201 Can I get funds from the
decedent’s IIM account for funeral
services?
§ 15.202 If the decedent owed me money,
how do I file a claim against the estate?
If a decedent owed you money, you
can make a claim against the estate of
the decedent before the probate file is
transferred to OHA. To do this, you may
submit to us an affidavit under oath of
the debt alleged and an itemized
statement of the debt, including copies
of any documents (such as signed notes,
mortgages, account records, billing
records, and journal entries) necessary
to prove the indebtedness. You may also
file your claim as a creditor with OHA
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after the probate file has been
transferred and pending adjudication
has not been completed if you comply
with 43 CFR 30.140–30.148.
(a) The itemized statement must show
the amount of the original debt and the
remaining balance on the date of the
decedent’s death.
(b) The affidavit must state whether
you have filed a claim or sought
reimbursement against the decedent’s
non-trust assets and whether you have
filed a claim for the same debt in any
other judicial or quasi-judicial
proceeding.
(c) Secured creditors must first
exhaust the security before submitting a
claim against trust personalty for any
deficiency. Submit a certified copy of a
judgment of a court of competent
jurisdiction determining the deficiency.
(d) File your claim before the
conclusion of the first hearing or, for
cases designated as summary probate
proceedings, as allowed under 43 CFR
30.202. Claims not filed by then will be
barred forever.
Subpart D—Preparing the Probate file
§ 15.301 What will BIA do with the
documents that I provide?
After we receive notice of the death of
a person owning trust or restricted land
or trust personalty, we will examine the
documents provided under §§ 15.104
and 15.105, and other documents and
information you may provide to prepare
a complete probate file. We will consult
with you and any other sources to
obtain additional information to
complete the probate file. Then we will
transfer the probate file to OHA.
rwilkins on PROD1PC63 with PROPOSALS
§ 15.302 What items must BIA include in
the probate file?
BIA must query available sources of
information to locate and include the
following items in the probate file:
(a) The evidence of death of the
decedent as provided by § 15.104;
(b) A completed Form OHA–7, ‘‘Data
for Heirship Findings and Family
History,’’ certified by BIA, with the
enrollment or other identifying number
shown for each potential heir or
devisee, if such number has been
assigned;
(c) Information provided by potential
heirs, devisees or the tribes on:
(1) Whether the heirs and devisees
meet the definition of ‘‘Indian’’ for
probate purposes, including enrollment
or eligibility for enrollment in a tribe;
(2) Whether the potential heirs or
devisees are within two degrees of
consanguinity of an ‘‘Indian’’; and
(3) If an individual only qualifies as
an Indian because of ownership of a
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trust or restricted interest in land, the
date on which the individual became
the owner of the trust or restricted
interest;
(d) A certified inventory of trust or
restricted land, including:
(1) Accurate and adequate
descriptions of all land and
appurtenances;
(2) All encumbrances on the land,
including but not limited to leases,
mortgages, and rights of way;
(3) Identification of any interests that
represent less than 5% of the undivided
interest in a parcel; and
(4) Identification of all income
generating activity, such as leases or
rights of way and any assignments of
such income;
(e) A statement showing the balance
of the decedent’s IIM account at the date
of death;
(f) A statement showing all
disbursements from the decedent’s IIM
account after the date of death;
(g) Originals or copies of all wills,
codicils, and revocations;
(h) A copy of any statement or
document concerning any wills, codicils
or revocations we have returned to the
testator;
(i) Any statement renouncing an
interest in the estate that has been
submitted to us, and the information
necessary to identify any person
receiving a renounced interest;
(j) Claims of creditors, including
documentation required by § 15.202;
(k) Documentation of any payments
made on claims filed under the
provisions of § 15.201;
(l) All the documents acquired under
§ 15.105;
(m) The record of each tribal or
individual request to purchase a trust or
restricted land interest at probate;
(n) The record of any individual
request for a consolidation agreement,
including a description, such as an
Individual/Tribal Interest Report, of any
lands not part of the decedent’s estate
that are proposed for inclusion in the
consolidation agreement; and
(o) An affidavit by the probate staff, if
applicable, certifying that the
Department has complied with 25
U.S.C. 2201 et seq in attempting to
locate missing potential heirs and
devisees and identifying the steps that
were taken.
§ 15.303
When is a probate file complete?
A probate file is complete for transfer
to OHA when a BIA approving official
includes a certification that:
(a) States that the probate file includes
all information listed in § 15.302 that is
available; and
(b) Lists all sources of information
BIA queried in an attempt to locate
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45209
information listed in § 15.302 that is not
available.
Subpart E—Probate Processing and
Distributions
§ 15.401 What happens after BIA prepares
the probate file?
After we assemble all the documents
required by § 15.302, our probate staff
will:
(a) Refer the case to OHA for
assignment to a judge or ADM; and
(b) Forward a list of fractional
interests that represent less than 5
percent of the entire undivided
ownership of each parcel of land in the
decedent’s estate to the Indian Land
Consolidation Office and to the tribes
with jurisdiction over those interests.
§ 15.402 What happens after the probate
file is referred to OHA?
(a) When OHA receives the probate
file from BIA, it will assign the case to
a judge or ADM. The judge or ADM will
conduct the probate proceeding and
issue a written decision and an order, in
accordance with 43 CFR part 4, subpart
D.
(b) If BIA receives any claims from
creditors after the probate file is
transmitted to OHA, but before the order
is issued, BIA must promptly transmit
those claims to OHA.
§ 15.403 What happens after the probate
decision is made?
Once the probate decision is made:
(a) You have 30 days from the
decision or order mailing date to file a
written request for a de novo review, a
request for rehearing or an appeal, in
accordance with 43 CFR part 30;
(b) When you file a timely request for
de novo review, a request for rehearing,
or an appeal, we will not pay claims,
transfer title to land, or distribute trust
personalty until the request or appeal is
resolved; and
(c) If no interested party timely files
a request or appeal, we will wait at least
10 days after the 30 day period stated
in paragraph (a) of this section before
paying claims, transferring title to land,
or distributing trust personalty, then:
(1) The LTRO will change its land
title records for the trust and restricted
land in accordance with the final
decision or order; and
(2) We will pay claims and distribute
the IIM account in accordance with the
final decision or order.
Subpart F—Information and Records
§ 15.501 How can I find out the status of
a probate?
You may contact any BIA agency or
regional office, an OST fiduciary trust
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officer or the Trust Beneficiary Call
Center at (888) 678–6836 ext. 0, to get
information about the status of an
Indian probate.
§ 15.502 Who owns the records associated
with this part?
(a) The United States owns the
records associated with this part if they:
(1) Are made by or on behalf of the
United States;
(2) Are made or received by a tribe or
tribal organization in the conduct of a
federal trust function under this part,
including the operation of a trust
program under Public Law 93–638 as
amended; and
(3) Are evidence of the organization,
functions, policies, decisions,
procedures, operations, or other
activities undertaken in the performance
of a federal trust function under this
part.
(b) The tribe owns the records
associated with this part if they:
(1) Are not covered by paragraph (a)
of this section; and
(2) Are made or received by a tribe or
tribal organization in the conduct of
business with the Department of the
Interior under this part.
§ 15.503 How must records associated
with this part be preserved?
(a) Any organization that has records
identified in § 15.502(a), including
tribes and tribal organizations, must
preserve the records in accordance with
approved Departmental records
retention procedures under the Federal
Records Act, 44 U.S.C. chapters 29, 31,
and 33; and
(b) A tribe or tribal organization must
preserve the records identified in
§ 15.502(b) for the period authorized by
the Archivist of the United States for
similar Department of the Interior
records under 44 U.S.C. chapter 33.
15.201, 15.202, 15.403, 15.505 have
been approved by the Office of
Management and Budget under 44
U.S.C. 3501 et seq. and assigned OMB
Control Number 1076–xxxx. Response is
required to obtain a benefit. A Federal
agency may not conduct or sponsor, and
you are not required to respond to a
collection of information unless the
form or regulation requesting the
information has a currently valid OMB
Control Number.
2. Add part 18 to subchapter C to read
as follows:
PART 18—TRIBAL PROBATE CODES
Sec.
18.1
May a tribe adopt its own probate
code?
18.2 When does a code require our
approval?
18.3 What will you consider in the approval
process?
18.4 How does a tribe request approval for
a probate code?
18.5 When will you approve or disapprove
a probate code or amendment?
18.6 What happens if the probate code or
amendment is approved?
18.7 How is a tribe notified of a
disapproval?
18.8 When will a tribal probate code
become effective?
18.9 What will happen if a tribe repeals its
probate code?
18.10 How does the Paperwork Reduction
Act affect this part?
Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9,
372–74, 410; 44 U.S.C. 3101 et seq; 25 CFR
part 15; 43 CFR part 4.
§ 18.1 May a tribe adopt its own probate
code?
The records and records management
practices and safeguards required under
the Federal Records Act are subject to
inspection by BIA and the Archivist of
the United States.
(a) A tribe may adopt a probate code
to govern descent and distribution of
trust and restricted lands located within
the tribe’s reservation or otherwise
subject to the tribe’s jurisdiction. The
code may include:
(1) Rules of intestate succession; and
(2) Other provisions consistent with
Federal law that promote the policies in
§ 18.3.
(b) A tribe may adopt a single heir
rule for intestate succession specifying a
recipient other than the one provided by
25 U.S.C. 2206(a)(2)(D).
§ 15.505 What information must tribes
provide BIA to complete the probate file?
§ 18.2 When does a code require our
approval?
The tribes must provide any
information that we require or request to
complete the probate file. This
information may include enrollment
and family history data or property title
documents that pertain to any pending
probate matter.
Only those tribal probate codes that
govern the descent and distribution of
trust and restricted lands require our
approval.
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§ 15.504
Who may inspect these records?
§ 15.506 How does the Paperwork
Reduction Act affect this part?
The collections of information
contained in §§ 15.4, 15.104, 15.105,
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§ 18.3 What will you consider in the
approval process?
We will consider the following in
determining whether to approve a tribal
probate code:
(a) The code must promote the
policies of the Indian Land
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Consolidation Act (ILCA) Amendments
of 2000 which are to:
(1) Prevent further fractionation;
(2) Consolidate fractional interests
into useable parcels;
(3) Consolidate fractional interests to
enhance tribal sovereignty;
(4) Promote tribal self-sufficiency and
self-determination; and
(5) Reverse the effects of the allotment
policy on Indian tribes;
(b) The tribal probate code must
allow:
(1) An Indian lineal descendant of the
original allottee to inherit; and
(2) An Indian who is not a member of
the Indian tribe with jurisdiction over
the interest in land to inherit; and
(c) A tribe may limit the individuals
in paragraphs (b)(1) and (2) of this
section if the code:
(1) Allows those individuals to
renounce their interests to eligible
devisees in accordance with the tribal
code;
(2) Allows a devisee spouse or lineal
descendant of the testator or of the
original allottee to reserve a life estate
without regard to waste; and
(3) Allows for the payment of fair
market value as determined by us on the
date of the decedent’s death.
§ 18.4 How does a tribe request approval
for a probate code?
(a) To begin the approval process for
either a tribal probate code or
amendment to the code, the tribe must
submit to the local Bureau Official as
defined in 25 CFR 82.1(h):
(1) Its probate code or an amendment
to an existing code; and
(2) A duly executed tribal resolution
adopting the code or the amendment.
(b) The local Bureau Official will
make sure that a complete copy of the
code and the resolution is submitted to
the Assistant Secretary—Indian Affairs
for approval.
§ 18.5 When will you approve or
disapprove a probate code or amendment?
(a) We have 180 days from submission
of a complete package to the local
Bureau Official to approve or
disapprove a tribal probate code.
(b) We have 60 days from submission
of an amendment of the tribal probate
code to approve or disapprove the
amendment.
(c) If we do not meet the deadlines in
paragraphs (a) or (b) of this section, the
tribal probate code or the amendment to
the code will be deemed approved, but
only to the extent that it:
(1) Is consistent with Federal law; and
(2) Promotes the policies of the ILCA
Amendments of 2000 as listed in § 18.3.
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§ 18.6 What happens if the probate code or
amendment is approved?
Our approval applies only to those
sections of the tribal probate code that
govern the descent and distribution of
trust or restricted land. We will:
(1) Notify the tribe of the approval
and forward a copy of the code or
amendment to the Office of Hearings
and Appeals; and
(2) Publish a notice of the date of the
approval in the Federal Register.
§ 18.7 How is a tribe notified of a
disapproval?
If we disapprove a tribal probate code
or amendment, we must provide the
tribe with a written notification of the
disapproval that includes:
(a) An explanation of the reasons for
the disapproval; and
(b) Notification that the tribe may
appeal the disapproval directly to the
Interior Board of Indian Appeals under
25 CFR part 2.
§ 18.8 When will a tribal probate code
become effective?
(a) A tribal probate code may not
become effective sooner than 180 days
after the date of approval.
(b) The tribal probate code or
amendment will apply only to the estate
of a decedent who dies on or after the
effective date of the tribal probate code
or amendment.
§ 18.9 What will happen if a tribe repeals
its probate code?
(a) If a tribe repeals its tribal probate
code, the repeal:
(1) Will not become effective sooner
than 180 days from the date we receive
notification from the tribe of its decision
to repeal the code; and
(2) Will apply only to the estate of a
decedent who dies on or after the
effective date of the repeal.
(b) We will:
(1) Forward a copy of the repeal to the
Office of Hearings and Appeals; and
(2) Publish a notice of the date of
repeal in the Federal Register.
rwilkins on PROD1PC63 with PROPOSALS
§ 18.10 How does the Paperwork
Reduction Act affect this part?
The collection of information
contained in § 18.4 has been approved
by the Office of Management and
Budget under 44 U.S.C. 3501 et seq. and
assigned OMB Control Number 1076xxxx. Response is required to obtain a
benefit. A Federal agency may not
conduct or sponsor, and you are not
required to respond to a collection of
information unless the form or
regulation requesting the information
has a currently valid OMB Control
Number.
3. Revise part 150 to read as follows:
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PART 150—INDIAN LAND RECORD OF
TITLE
Subpart A—Purpose, Definitions, and
Public Information
Sec.
150.1 What is the purpose of this part?
150.2 What terms do I need to know?
150.3 When can I see land and title
information from the Indian Land Record
of Title?
150.4 Do I have to be an Indian or a tribe
to obtain products or services from the
Land Titles and Records Office?
Subpart B—The Indian Land Record of Title
Designation as the Official Record of Indian
Land
150.101 Must all title instruments affecting
Indian land be recorded in the Indian
Land Record of Title?
150.102 Do I have to check with any other
governmental office to find title
instruments to Indian land?
Subpart C—LTRO Procedures and
Requirements to Record Instruments in the
Indian Land Record of Title
150.201 Who maintains the Indian Land
Record of Title?
150.202 Where is the LTRO located?
150.203 Who submits the title instruments
for recording?
150.204 What does the LTRO do with the
instruments it receives?
150.205 What are the minimum
requirements for recording a title
instrument?
150.206 What if the LTRO discovers a
defect or error in a document?
150.207 What if a defect or error in a final
probate record cannot be corrected?
150.208 How do I correct an error or
omission in a title instrument or LTRO
product or service?
150.209 What instruments qualify for
recording with the LTRO?
150.210 Does the LTRO maintain the
original title instruments?
150.211 May I obtain a copy of the title
instrument from the LTRO?
150.212 Is there any benefit to obtaining a
certified copy of the title?
Subpart D—Services and Products of the
LTRO
150.301 What services and products may I
order from the LTRO?
150.302 How do I order services and
products from the LTRO?
150.303 Does BIA charge fees for any of the
services provided by, or products
produced by, the LTRO?
150.304 What will the LTRO do if the
instrument contains information that is
privileged or protected?
150.305 How does the Paperwork
Reduction Act affect this part?
Authority: Act of June 30, 1834 (4 Stat.
738; 25 U.S.C. 9). Act of July 26, 1892 (27
Stat. 272; 25 U.S.C. 5). Reorganization Plan
No. 3 of 1950 approved June 20, 1949 (64
Stat. 1262). (Act of April 26, 1906 (34 Stat.
137); Act of May 27, 1908 (35 Stat. 312); Act
of August 1, 1914 (38 Stat. 582, 598) deals
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specifically with land records of the Five
Civilized Tribes. Act of February 14, 1920 (41
Stat. 415) amended March 1, 1933 (47 Stat.
1417; 25 U.S.C. 413); 5 U.S.C. 552a; 25 U.S.C.
14b; and 31 U.S.C. 9701.
Cross-reference: For further
regulations pertaining to proceedings in
Indian probate, see 43 CFR part 4,
subpart D, 43 CFR part 30, and 25 CFR
part 15.
Subpart A—Purpose, Definitions and
Public Information
§ 150.1
What is the purpose of this part?
The purpose of this part is to describe
the authorities, policies, and procedures
used for:
(a) Recording instruments that affect
title to Indian land;
(b) Maintaining copies of title
instruments;
(c) Maintaining the Indian Land
Record of Title;
(d) Certifying title instruments of
Indian land;
(f) Examining and determining title
status;
(g) Preparing reports on the title of
Indian land; and
(h) Designating the Indian Land
Record of Title as the official record for
instruments that affect title to Indian
land.
§ 150.2
What terms do I need to know?
As used in this part:
BIA means the United States
Department of the Interior Bureau of
Indian Affairs.
Constructive notice means
information or knowledge of a fact
imputed by law to a person even if such
person has no actual knowledge of the
fact.
Federal government means the
government of the United States.
Government offices mean the Federal,
state, county, and municipal
government.
Indian land means land held in trust
status or restricted status, or certain
Federal government land that is under
the jurisdiction of BIA.
Indian Land Record of Title means the
record of title instruments for Indian
land under the Act of July 26, 1892, 27
Stat.272; 25 U.S.C. 5.
Instrument means a document in
writing, including, but not limited to, a
contract, deed, will, bond, judicial or
administrative order, lease, or easement,
including a map or plat.
Interest, when used with respect to
Indian land, means a present or future
right in trust or restricted land.
Land means real estate.
Land Titles and Records Office
(LTRO) means the office within BIA that
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is responsible for maintaining the
Indian Land Record of Title by
recording, providing custody, and
certifying title instruments in its
custody, and for examining and
determining the completeness and
accuracy of the record of interests in
Indian land, certifying the findings of
examination, and reporting the status of
interests in Indian land. The Land Titles
and Records Office, as used herein,
includes tribes which have compacted
or contracted to perform some Land
Titles and Records functions.
Recording means the entry of the
information from an instrument into the
Indian Land Record of Title. Recording
an instrument in the Indian Land
Record of Title gives constructive notice
of the instrument’s existence.
Secretary means the Secretary of the
Interior, or an authorized representative.
Title means an interest, or evidence of
an interest, in Indian land.
Title examination means a review and
evaluation by the Land Titles and
Records Office of the information in the
Indian Record of Title for a particular
tract of Indian land and a finding that
such information is complete, accurate,
and current.
Title instrument means any
instrument that affects an interest in
Indian land and that the law and
regulations require to be approved or
recorded.
Tribe means any Indian tribe, nation,
band, pueblo, town, community,
rancheria, colony, or other group of
Indians, which is recognized by the
Secretary as eligible for the special
programs and services provided by the
Bureau of Indian Affairs, and listed in
the Federal Register under Public Law
103–454, act of Nov. 2, 1994 (108 Stat.
4791; 25 U.S.C. 479a).
Trust status means the United States
holds title to the property in trust for the
benefit of a tribe or individual Indian.
Restricted status means a tribe or
individual Indian holds title to the
property in fee simple subject to Federal
restrictions on alienation or
encumbrance.
You/I means the person reading this
regulation.
current interests, and related
documents.
(c) Owners of an interest in trust or
restricted land within the same
reservation, the tribe or any person that
is leasing, using, or consolidating, or is
applying to lease, use or consolidate,
such trust or restricted land or the
interest in trust or restricted lands may
receive names and mailing addresses,
information on the location of the
parcel, and the percentage of the parcel
owned by each individual, without
regard to the Privacy Act and any
exemption contained in the Freedom of
Information Act, 5 U.S.C. 552.
(d) You do not need to make a request
under the Freedom of Information Act
to see records covered by this section.
You may submit a request for
information to any location of the Land
Titles and Records Office or BIA as
provided in subpart D of this part.
§ 150.4 Do I have to be an Indian or a tribe
to obtain products or services from the
Land Titles and Records Office?
No. Anyone may receive products and
services offered by the Land Titles and
Records Office (LTRO).
Subpart B—The Indian Land Record of
Title Designation as the Official Record
of Indian Land
§ 150.101 Must all title instruments
affecting Indian land be recorded in the
Indian Land Record of Title?
The Indian Land Record of Title is the
official record of title instruments
affecting Indian land and all title
instruments must be recorded there,
except as provided by other Federal
statutory authority. When the LTRO
records a title instrument in the Indian
Land Record of Title, the public receives
constructive notice that the title
instrument exists. Title instruments
affecting Indian land within the
jurisdiction of the Five Civilized Tribes
and the Osage Nation must be recorded
in the county courthouse serving the
county within which the land is located.
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§ 150.3 When can I see land and title
information from the Indian Land Record of
Title?
§ 150.102 Do I have to check with any
other governmental office to find title
instruments to Indian land?
(a) You may access, inspect and copy
the information in the Indian Land
Record of Title except where this
information is subject to the Privacy
Act, 5 U.S.C. 552a or other law or policy
restricting access to records.
(b) Information covered by this
section includes information on the
location of the land, historical interests,
No. The Indian Land Record of Title
is the source of all recorded title
instruments, except those affecting land
of the Five Civilized Tribes and Osage
Nation, which are recorded in the
county courthouse serving the county
within which the land is located.
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Subpart C—LTRO Procedures and
Requirements to Record Instruments
in the Indian Land Record of Title
§ 150.201 Who maintains the Indian Land
Record of Title?
The LTRO is the office within BIA
responsible for maintaining the Indian
Land Record of Title. It records title
instruments affecting Indian land,
certifies copies of images of the
instruments in the custody of the LTRO,
examines the record and certifies the
findings of examinations, and provides
other services and products based upon
the information in the record.
§ 150.202
Where is the LTRO located?
The LTRO has locations throughout
the United States. You may contact any
BIA office for the current contact
information.
§ 150.203 Who submits the title
instruments for recording?
BIA submits most of the title
instruments to the LTRO. Tribes, other
government offices, and individuals
may also submit instruments to the
LTRO.
§ 150.204 What does the LTRO do with the
instruments it receives?
(a) The LTRO reviews the instrument
to ensure that it satisfies the minimum
requirements for recording. If so, the
LTRO:
(1) Makes a true and correct image of
the instrument;
(2) Enters the information contained
in the instrument affecting the status of
title into the Indian Land Record of
Title; and
(3) Returns the original instrument.
(b) If the instrument does not satisfy
the minimum requirements, the LTRO
returns the instrument with an
explanation why the instrument was not
accepted for recording.
§ 150.205 What are the minimum
requirements for recording a title
instrument?
The minimum requirements for
recording an instrument include:
(a) A legal description of the Indian
land;
(b) The signatures of the parties to the
instrument;
(c) Proper acknowledgment of the
signatures of the parties; and
(d) If required, proper Federal
approval, and the approval date and
authority of the Federal official.
§ 150.206 What if the LTRO discovers a
defect or error in a document?
(a) If the LTRO discovers the error
after the instrument is recorded, the
LTRO will notify the submitting person
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of the error and make a notation in the
Indian Land Record of Title that an error
exists.
(1) Once the interested parties correct
the error and the submitting person
returns an instrument evidencing the
correction to the LTRO, the LTRO will
record the instrument in the Indian
Land Record of Title.
(2) In any subsequent title
examination, the LTRO will rely upon
the corrected instrument to determine
the title status of the Indian land.
(b) If the LTRO discovers a defect or
error in a final probate record after it has
been recorded, the LTRO will issue
administrative corrections to correct
clerical probate errors, or to add omitted
property or interest as set forth in 43
CFR 30.126. Other defects or errors will
be addressed through the probate
process as provided in 43 CFR part 30.
§ 150.209 What instruments qualify for
recording with the LTRO?
§ 150.207 What if a defect or error in a final
probate record cannot be corrected?
Yes. If the LTRO certifies a copy of
the title instrument, you may use the
certified copy in court or elsewhere, the
same as the original instrument.
If a defect or error in a final probate
record cannot be corrected, the LTRO
will notify the appropriate deciding
official, as provided in 43 CFR 30.126
and 30.127, and make a notation in the
Indian Land Record of Title that a
possible error exists.
(a) Once the deciding official corrects
the error and submits an instrument
evidencing the correction to the LTRO,
the LTRO will record the instrument in
the Indian Land Record of Title.
(b) In any subsequent title
examination, the LTRO will rely upon
the corrected instrument to determine
the title status of the Indian land.
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(a) To correct an error or omission,
you may submit a written description of
the error or omission with any
supporting documentation to the
approving official or to the LTRO.
(b) After receiving the description of
the error, the LTRO will conduct an
investigation. If the LTRO determines
that there is an error or omission in the
product or service, it will correct the
product or service.
(1) If there is an error or omission in
the information in the Indian Land
Record of Title, it will correct the error
or omission based upon the image or
original copy of the title instrument
from which it obtained the information.
(2) If there is an error or omission in
the title instrument, it will follow the
procedures set forth in §§ 150.206
through 150.208.
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§ 150.210 Does the LTRO maintain the
original title instruments?
No. The LTRO returns the original
instrument to the submitter.
§ 150.211 May I obtain a copy of the title
instrument from the LTRO?
Yes. If the Land Titles and Records
Office has recorded the information
from the title instrument in the Indian
Land Record of Title and has made a
copy of the title instrument, you may
obtain a copy of the title instrument,
subject to the Freedom of Information
Act and the Privacy Act considerations
as described in § 150.3.
§ 150.212 Is there any benefit to obtaining
a certified copy of the title?
Subpart D—Services and Products of
the LTRO
§ 150.301 What services and products may
I order from the LTRO?
You may obtain a list of services and
products provided by the LTRO from
the LTRO or BIA. Services include:
(a) Recording title instruments;
(b) Providing certified and uncertified
copies of images of title instruments
recorded in the Indian Land Record of
Title; and
(c) Producing reports.
§ 150.302 How do I order services and
products from the LTRO?
§ 150.208 How do I correct an error or
omission in a title instrument or LTRO
product or service?
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Only title instruments qualify for
recording in the Indian Land Record of
Title.
(a) You may submit your written
request for services and products to any
location of the LTRO or BIA.
(b) You must include either a legal
description of the land, the
identification number of the tract, or the
identification number of an owner of an
interest in the tract.
(c) You may submit other information
that the LTRO may use to identify an
owner of an interest in the tract of land,
including but not limited to: name and
tribal affiliation of an owner, the
recording number of the instrument, or
an allotment number.
§ 150.303 Does BIA charge fees for any of
the services provided by, or products
produced by, the LTRO?
(a) BIA charges fees for certain
services and products provided by the
LTRO. All persons who receive services
and products from the LTRO will be
assessed a fee, except as provided in
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paragraph (b) of this section. You may
pay the fee by certified check or money
order.
(1) A copy of the fee schedule is
available from BIA.
(2) Contact the LTRO for an estimate
of the amount of the fee for a service or
product.
(3) You must pay the entire fee, or
minimum fee if the fee is an hourly rate,
when you request the service or the
product from the LTRO. When the
LTRO delivers the service or the
product to you, you must pay any
remaining amount according to the
hourly rate.
(b) The LTRO may grant an exception
under the following circumstances:
(1) If you are an individual Indian and
are recording a transaction that reduces
the number of owners of undivided
interests in a tract of Indian land;
(2) If you are an individual Indian and
are recording an instrument to transfer
your undivided interest in Indian land
to a tribe;
(3) If you are a tribe and recording a
transaction that will consolidate the
ownership interests of a tract of Indian
land; or
(4) You are an agency or office within
the Department of the Interior or the
Department of Justice.
(c) The LTRO will charge you a
minimum fee even if the LTRO is
unable to provide the service or the
product, unless the LTRO grants an
exception under paragraph (b) of this
section.
(d) The LTRO will refund your fee for
any information that cannot be
delivered to you because of the Privacy
Act (5 U.S.C. 552a) or other law or
policy restricting access to the records.
§ 150.304 What will the LTRO do if the
instrument contains information that is
privileged or protected?
If information is protected under the
Privacy Act, or cannot be provided to
you because of 5 U.S.C. 552a or another
law or policy restricting access, the
LTRO will:
(a) Redact the information; and
(b) Provide you with the remaining
information or an altered copy of the
image of the instrument.
§ 150.305 How does the Paperwork
Reduction Act affect this part?
The collections of information
contained in §§ 150.208, 150.302(b), and
150.302(c), have been approved by the
Office of Management and Budget under
44 U.S.C. 3501 et seq. and assigned
OMB Control Number 1076–xxxx.
Response is required to obtain a benefit.
A Federal agency may not conduct or
sponsor, and you are not required to
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respond to, a collection of information
unless the form or regulation requesting
the information has a currently valid
OMB Control Number.
PART 152—CONVEYANCES OF TRUST
OR RESTRICTED INDIAN LAND;
REMOVAL OF TRUST OR
RESTRICTED STATUS
4. The authority citation for part 152
continues to read as follows:
Authority: 25 U.S.C. 2201–2204, 2212–
2216, Indian Land Consolidation Act, 97 Pub.
L. 459, 96 Stat. 2515 (Jan. 12, 1983), as
amended; American Indian Probate Reform
Act (AIPRA) of 2004, 108 P.L. 374, 118 Stat.
1773 (Oct. 24, 2004); R.S. 161; 5 U.S.C. 301.
Interpret or apply sec. 7, 32 Stat. 275, 34 Stat.
1018, sec. 1, 35 Stat. 444, sec. 1 and 2, 36
Stat. 855, as amended, 856, as amended, sec.
17, 39 Stat. 127, 40 Stat. 579, 62 Stat. 236,
sec. 2, 40 Stat. 606, 68 Stat. 358, 69 Stat. 666:
25 U.S.C. 378, 379, 405, 404, 372, 373, 483,
355, unless otherwise noted.
4a. The cross references for part 152
are revised to read as follows:
Cross-references: For further regulations
pertaining to the sale of irrigable lands, see
parts 160, and 159 and § 134.4 of this
chapter. For Indian money regulations, see
parts 115, 111, 116, and 112 of this chapter.
For regulations pertaining to the
determination of heirs and approval of wills,
see part 15 and subpart G of part 11 of this
chapter.
5. Revise the heading of part 152 to
read as set forth above.
6. Remove §§ 152.1 through 152.3,
including the center heading preceding
§ 152.3.
7. Remove §§ 152.17 through 152.35,
including the center headings preceding
§§ 152.17, 152.33, and 152.34.
8. Redesignate §§ 152.4 through 152.8
as §§ 152.701 through 152.705.
9. Redesignate §§ 152.9 through
152.16 as §§ 152.801 through 152.808.
Subpart H—Patents in Fee, Certificates
of Competency, and Orders Removing
Restrictions
10. Designate §§ 152.701 through
152.705 as subpart H and add a subpart
heading to read as set forth above.
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Subpart I—Special Provisions
Applicable to the Osage and Five
Civilized Tribes
11. Designate §§ 152.705 and 152.801
as subpart I and add a subpart heading
to read as set forth above.
12. Add subparts A through G to read
as set forth below.
Subpart A—General Provisions
Sec.
152.1
152.2
What does this part do?
What terms do I need to know?
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152.3 Will the Secretary provide ownership
information?
152.4 To whom will the Secretary provide
ownership information?
152.5 Which subparts do not apply to
Alaska?
152.218 What if there are liens or other
encumbrances on the lands to be
conveyed?
152.219 How does a transaction affect
collection of construction costs for
irrigation projects?
Subpart B—Sales and Exchanges of Tribal
Trust or Restricted Land
Subpart D—Tribal Parcel Purchase
152.101 What transactions are covered by
this subpart?
Sales and Exchanges Under a Land
Consolidation Plan
152.102 What must a land consolidation
plan include?
152.103 Are there any restrictions on a land
consolidation plan?
152.104 How does the Secretary approve a
land consolidation plan?
152.105 How does a tribe receive approval
for a sale or exchange under a land
consolidation plan?
152.106 How may the tribe use the
proceeds of a sale or exchange?
Exchanges Without a Land Consolidation
Plan
152.107 In the absence of an approved land
consolidation plan, how does a tribe get
approval for an exchange of tribal land?
152.108 What criteria will the Secretary use
to determine whether to approve an
exchange?
Subpart C—Negotiated Sales, Gifts, and
Exchanges of Individually Owned Lands
152.201 What lands are covered by this
subpart?
152.202 What transactions are covered by
this subpart?
152.203 Who may convey an interest in
trust or restricted land?
152.204 Who can receive an interest in trust
or restricted lands?
152.205 What restrictions apply to a
conveyance of trust or restricted land to
fee status?
152.206 How does an owner initiate a
negotiated sale, gift, or exchange?
152.207 Does a conveyance of a fractional
interest require the consent of the coowner(s)?
152.208 Is tribal consent required to convey
an interest in trust or restricted land
located within the tribe’s jurisdiction?
152.209 Is payment required for a
negotiated sale, exchange, or gift?
152.210 When must fair market value be
determined and provided to the grantor?
152.211 When must the Secretary receive
payment for the conveyance of the land?
152.212 How does the Secretary decide
whether to approve a negotiated sale,
gift, or exchange?
152.213 How does the negotiated sale or
exchange occur?
152.214 When is a negotiated sale, gift or
exchange effective?
152.215 How does an Indian Land
Consolidation Program lien attach?
152.216 How is an Indian Land
Consolidation Program lien removed?
152.217 When can a co-owner acquire an
interest previously acquired on behalf of
a tribe?
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152.301 What lands are covered by this
subpart?
152.302 What transactions are covered by
this subpart?
152.303 How does a tribe apply for a parcel
purchase?
152.304 How and when will owners be
notified of an application for tribal
parcel purchase?
152.305 Can an individual owner preempt
and succeed a tribe’s right to purchase?
152.306 How and when will the Secretary
review an application for parcel
purchase?
152.307 How and when will the
conveyance instrument be executed?
Subpart E—Consolidation by Sale of Highly
Fractionated Parcels
152.401 What terms do I need to know?
152.402 What lands are subject to
consolidation by sale?
152.403 How do I apply to consolidate a
parcel by sale?
152.404 What must the Secretary do before
acting on an application for
consolidation by sale?
152.405 What consents are necessary for a
consolidation by sale?
152.406 How will the Secretary notify
owners of the consolidation proceeding?
152.407 What action does the Secretary take
on comments or objections?
152.408 What happens if the Secretary
orders a new appraisal?
152.409 How can an owner appeal a
consolidation by sale proceeding?
152.410 How will the Secretary notify
owners of a sale after appeals have been
decided?
152.411 Who may participate in an auction
or sealed bid sale?
152.412 How does a tribe reserve its right
to match the highest bid?
152.413 How will the Secretary determine
the successful bidder?
152.414 What happens if no bid matches
the fair market value?
152.415 When must the highest bidder pay
for the purchase?
152.416 How will proceeds be distributed?
152.417 Is Federal financial assistance
available to support a bidder’s purchase?
152.418 What title is acquired?
Subpart F—Partitions in Kind
152.501 What lands are covered by this
subpart?
152.502 When does this subpart apply?
152.503 How can an owner initiate a
partition action?
152.504 How will you notify the applicant’s
co-owners of an application for
partition?
152.505 How and when will you review an
application?
152.506 When will you execute the
conveyance instruments?
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Subpart G—Mortgages and Deeds of Trust
152.601 What does this subpart do?
152.602 How do owners submit an
application for approval of a mortgage or
deed of trust?
152.603 How will the Secretary review the
application?
152.604 How may the mortgage or deed of
trust be enforced?
152.605 Does the land remain in trust as a
result of foreclosure or sale?
152.606 How does the Paperwork
Reduction Act affect this part?
Subpart A—General Provisions
§ 152.1
What does this part do?
This part explains the policy and
procedures for conveying trust or
restricted Indian land or removing
Indian land from trust or restricted
status.
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§ 152.2
What terms do I need to know?
As used in this part:
Fair market value means the value of
an interest in land determined in
accordance with the Uniform Standards
of Professional Appraisal Practice
(USPAP), or an alternative system we
may utilize for establishing fair market
value.
Family farm means land used for
agricultural production owned and
operated by the owner(s) and/or his
immediate family. The family farm can
include a house or residence.
Fee land means land or an interest in
land that is not trust or restricted.
Fee status means the interest in a
parcel of land is held by the owner
without restrictions on alienation or
encumbrance and not in trust by the
United States for that owner.
Fractional interest means an
undivided interest in Indian land
owned in common by Indian or tribal
landowners and/or fee owners.
Indian means any person who:
(1) Is a member of any federally
recognized tribe or, for purposes of land
transactions in Alaska, can demonstrate
Alaska Native ancestry;
(2) Is eligible to become a member of
any federally recognized tribe;
(3) Is a descendent of a member and
said descendent was, on June 1, 1934,
physically residing on a federally
recognized Indian reservation;
(4) Possesses a total of one-half or
more degree Indian blood;
(5) Is an owner (as of October 27,
2004) of a trust or restricted interest in
land; or
(6) With respect to land in the State
of California, is an owner of a trust or
restricted interest in land in California.
Land consolidation plan means a
tribal plan for eliminating fractionation
and/or consolidating tribal
landholdings.
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Owner(s) means, except in subpart D
of this part, the tribe or individual
person or persons who are the
beneficiaries of trust land or who hold
title to restricted land. In subpart D of
this part, owner also includes
individuals and entities that hold title
in fee status.
Restricted land means land or an
interest therein the title to which is held
by an Indian or a tribe and which can
only be alienated or encumbered by the
owner with the approval of the
Secretary because of limitations in the
conveyance instrument under federal
law.
Secretary/we/our/us means the
Secretary of the Interior or an
authorized representative.
Tribal land means tribal trust land
and other tribally owned land that is
subject to any general restrictions on
alienation imposed by federal law.
Tribe means any Indian tribe, nation,
band, pueblo, town, community,
rancheria, colony, or other group of
Indians, which is recognized by the
Secretary as eligible for the special
programs and services provided by the
Bureau of Indian Affairs, and listed in
the Federal Register under the Act of
November 2, 1994 (108 Stat. 4792; 25
U.S.C. 479a–1).
Trust land means land or an interest
therein that the United States holds in
trust for the benefit of an Indian or a
tribe.
You/I means the reader of this
regulation.
§ 152.3 Will the Secretary provide
ownership information?
Yes. We will provide ownership
information under part 150 of this
chapter to an individual or tribe
interested in conveying or acquiring by
negotiated sale, gift, or exchange. We
will, through the Land and Title
Records Office and the local BIA
Agency and local Trust Officer, provide
the names and mailing addresses of the
owners of a parcel of trust or restricted
lands, the location of the parcel, and the
percentage of undivided interest owned
by each owner. A request for ownership
information must be in writing and
must include the legal description or
other identifier of the parcel and how
the applicant meets the requirements of
§ 152.4.
§ 152.4 To whom will the Secretary provide
ownership information?
Anyone may receive information
under part 150 of this chapter. We will
provide ownership information to:
(a) Owners, including owners holding
an interest in fee status, of a parcel of
trust or restricted land on the same
reservation;
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(b) The tribe that exercises
jurisdiction over the parcel;
(c) A person eligible for membership
in that tribe;
(d) Any person or entity that is
leasing, using, consolidating, or
applying to lease, use or consolidate
trust or restricted lands on that
reservation; or
(e) Anyone authorized by an
individual owner to receive the
information.
§ 152.5 Which subparts do not apply to
Alaska?
(a) Subparts B and D of this part do
not apply to Alaska.
(b) In subparts C and E of this part,
the term ‘‘tribe’’ includes the Metlakatla
Indian Community but does not include
any other Alaska tribe.
(c) Subparts F, G and H of this part
apply in their entirety to individually
owned restricted lands in Alaska.
Subpart B—Sales and Exchanges of
Tribal Trust or Restricted Land
§ 152.101 What transactions are covered
by this subpart?
Except as provided in this subpart or
as authorized by a specific act of
Congress, tribal land may not be sold,
exchanged, or otherwise conveyed. This
subpart authorizes us to approve:
(a) Negotiated sales and exchanges of
tribal land, where made under a land
consolidation plan approved by us
under this subpart; and
(b) Exchanges of tribal land, when the
fair market value of the land being
received in exchange is substantially
equal to or greater than the fair market
value of the tribal land being conveyed.
Sales and Exchanges Under a Land
Consolidation Plan
§ 152.102 What must a land consolidation
plan include?
A land consolidation plan must
include:
(a) A description and map of the
general area within which are located
the tribal lands and interests to be
conveyed, and the lands and interests to
be acquired through exchange or
purchased with the sale proceeds;
(b) An explanation of how the plan
will facilitate the elimination of
fractionation and/or the consolidation of
tribal landholdings; and
(c) An appropriate supporting tribal
resolution.
§ 152.103 Are there any restrictions on a
land consolidation plan?
Yes. A land consolidation plan may
not authorize land sales or other types
of land transactions that are prohibited
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by the tribe’s constitution or other
governing document.
§ 152.104 How does the Secretary approve
a land consolidation plan?
We may approve the land
consolidation plan if it is consistent
with the requirements of this subpart.
We will take action on the tribe’s land
consolidation plan (or amended plan)
within 120 working days of our
receiving a complete plan and
supporting tribal resolution.
§ 152.108 What criteria will the Secretary
use to determine whether to approve an
exchange?
§ 152.105 How does a tribe receive
approval for a sale or exchange under a
land consolidation plan?
(a) The tribe must request Secretarial
approval for each sale or exchange made
under an approved land consolidation
plan by submitting a tribal resolution
that identifies the land(s) involved and
requests Secretarial approval for the sale
or exchange.
(b) Upon receiving an appropriate
authorizing resolution requesting
approval for a sale or exchange, we will:
(1) Prepare a conveyance instrument;
and
(2) Determine fair market value.
(c) We will approve the sale or
exchange of land if:
(1) The land being sold or exchanged
is identified for conveyance in an
approved land consolidation plan; and
(2) The tribe receives payment equal
to at least 90 percent of the fair market
value of the land being sold or
exchanged. Such payment may include
any combination of cash or land equal
to or greater than the requisite
percentage.
§ 152.106 How may the tribe use the
proceeds of a sale or exchange?
(a) Any proceeds from any sale or
exchange made under an approved
tribal land consolidation plan must be:
(1) Deposited in a segregated, interestbearing trust account established and
maintained by the Secretary; and
(2) Used only for the purchase of
other lands, as identified in the land
consolidation plan.
(b) Any fee land purchased with the
proceeds derived from any sale or
exchange made under an approved land
consolidation plan may be placed in
trust status upon satisfying any
applicable requirements in part 151 of
this chapter.
rwilkins on PROD1PC63 with PROPOSALS
Exchanges Without a Land
Consolidation Plan
§ 152.107 In the absence of an approved
land consolidation plan, how does a tribe
get approval for an exchange of tribal land?
(a) To obtain approval for an exchange
of tribal land, a tribe must submit an
appropriate authorizing resolution that
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identifies the lands involved and
requests our approval for the exchange.
(b) Upon receiving an appropriate
authorizing resolution requesting
Secretarial approval, we will:
(1) Prepare a conveyance instrument
or approve a conveyance instrument
prepared by a tribe; and
(2) Determine fair market value of the
tribal land to be conveyed and of the
land to be acquired in the exchange.
We will approve the exchange of land
in the absence of an approved land
consolidation plan only if:
(a) The land the tribe is acquiring has
a fair market value equal to or greater
than that of the land being conveyed,
and
(b) If the land to be acquired is in fee
status, the acquisition meets the
requirements set forth in part 151 of this
chapter.
Subpart C—Negotiated Sales, Gifts,
and Exchanges of Individually Owned
Lands
§ 152.201
subpart?
What lands are covered by this
This subpart applies to whole or
fractional trust and restricted interests
in land owned by an Indian. The land
can be located on or off a reservation.
This subpart also applies to severed
mineral interests.
§ 152.202 What transactions are covered
by this subpart?
(a) Transactions covered by this part
include:
(1) Negotiated sales, gifts, and
exchanges, whereby a conveyance
instrument is executed by or on behalf
of the trust or restricted owners, subject
to Secretarial approval; and
(2) Partitions accomplished by
exchanges of deeds among all of the
owners, rather than by application to
the Secretary under subpart F of this
part.
(b) The following transactions are not
covered by this subpart:
(1) Conveyances made by the
Secretary without the consent of all of
the owners; and
(2) Conveyances or purchases made
during a probate of trust or restricted
land.
§ 152.203 Who may convey an interest in
trust or restricted land?
(a) Unless otherwise prohibited by
law, the following individuals or
entities may convey an interest in trust
or restricted land with the approval of
the Secretary:
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(1) Any individual owner 18 years of
age or older may convey his or her
interest;
(2) Guardians, conservators, or other
fiduciaries who are appointed by a court
of competent jurisdiction and who have
been granted the authority to convey,
may convey trust or restricted land
belonging to their Indian wards who are
minors, non compos mentis, or
otherwise under legal disability; and
(3) Parents may convey their
children’s fractional interests in trust or
restricted land only for the purposes of
consolidation.
(b) Except where otherwise
prohibited, an adult or legal entity who
has been given a written power of
attorney may convey trust or restricted
land. The power of attorney must:
(1) Meet all of the formal
requirements of any applicable tribal or
state law;
(2) Identify the attorney-in-fact and
the land to be conveyed; and
(3) Describe the scope of the power
granted and any limits thereon.
§ 152.204 Who can receive an interest in
trust or restricted lands?
(a) Subject to the conditions in this
subpart, trust or restricted land may be
conveyed in trust status to:
(1) The tribe having jurisdiction over
the parcel;
(2) Any Indian, as defined in § 152.1;
or
(3) Any trust or restricted co-owner,
as identified in our records as of the
date on which the grantor’s application
to convey is filed.
(b) Subject to the restriction in
§ 152.205, any individual or entity may
receive the interest in fee status. In
addition, any individual or entity not
eligible under paragraph (a) of this
section to receive an interest in trust
status must receive the interest in fee
status.
§ 152.205 What restrictions apply to a
conveyance of trust or restricted land to fee
status?
An owner of trust or restricted land
who applies to convey that interest to
fee status must notify the tribe with
jurisdiction over the parcel and provide
us with a copy of the notification.
(a) Except as provided in paragraph
(b) of this section, when the tribe with
jurisdiction over the parcel receives
notice, the tribe:
(1) Has a maximum of 30 days to
notify us of its intent to purchase; and
(2) Has the opportunity within 30
days after its statement of intent to:
(i) If the conveyance is a sale, pay the
purchase price;
(ii) If the conveyance is a gift, pay the
fair market value; or
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(iii) If the conveyance is an exchange,
pay the total payment received by the
grantor.
(b) The tribe may not exercise its
rights under paragraph (a) of this
section, if the parcel or interest to be
conveyed is part of a family farm and is
being conveyed to a member of the
grantor’s family who is residing on, or
working, the farm. For purposes of this
section, ‘‘member of the grantor’s
family’’ means:
(1) A lineal descendant of the grantor;
(2) A lineal descendant of the
grandparents of the grantor; or
(3) The spouse of the grantor or of a
person described in paragraphs (b)(1) or
(b)(2) of this section.
(c) Where a conveyance is made to a
family member under paragraph (b) of
this section, the deed must include a
statement that the tribe will have the
rights identified in paragraph (a) of this
section if the grantee attempts to convey
to a non-family member, except if the
conveyance is a mortgage or deed of
trust or the tribe provides a written
waiver of its right to purchase.
§ 152.206 How does an owner initiate a
negotiated sale, gift, or exchange?
To initiate a negotiated sale, gift, or
exchange, the owner must provide us
with a written request that includes the
following:
(a) A description of the land;
(b) The proposed grantee and his or
her tribal affiliation, if any;
(c) Any limitations or encumbrances
known by the grantor on his or her right
to convey the land;
(d) Any intention to reserve rights to
the land;
(e) Whether the owner waives his or
her right to receive information
regarding fair market value for this
transaction under § 152.210(b); and
(f) Terms of the sale, gift, or exchange.
§ 152.207 Does a conveyance of a
fractional interest require the consent of the
co-owner(s)?
No. An Indian may convey a
fractional interest without the consent
of co-owner(s).
rwilkins on PROD1PC63 with PROPOSALS
§ 152.208 Is tribal consent required to
convey an interest in trust or restricted land
located within the tribe’s jurisdiction?
(a) If the grantor owns 100 percent of
the trust and restricted interests in a
parcel, tribal consent for conveyance of
the interest is not required.
(b) If the grantor owns less than 100
percent of the trust and restricted
interests in the parcel, tribal consent to
convey the interest is required only if:
(1) The tribe has jurisdiction over the
parcel; and
(2) Applicable tribal law requires
approval before a conveyance can occur.
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§ 152.209 Is payment required for a
negotiated sale, exchange, or gift?
No. A conveyance may be made to
any individual or entity at any
negotiated price or for no payment. Our
approval of the conveyance does not
constitute a breach of trust if either:
(1) We have provided to the grantor
an estimate of value; or
(2) The grantor waives the right to
information about fair market value in
accordance with § 152.210.
§ 152.210 When must fair market value be
determined and provided to the grantor?
(a) Except as provided in paragraph
(b) of this section, the grantor must be
notified of the fair market value of his
or interest.
(b) The grantor may waive the right to
be provided with fair market value
information on the interest being
conveyed only if:
(1) The grantee acquires the interest in
trust or restricted status; and
(2) One of the following criteria is
met:
(i) The grantee is an Indian and is the
grantor’s spouse, lineal ancestor, lineal
descendant, sibling, or blood relative; or
(ii) The interest being conveyed is a
fractional interest of 5 percent or less, as
reflected in our records as of the date on
which the application is filed, and the
grantee is an Indian co-owner or the
tribe having jurisdiction over the parcel.
(c) If the interest has been conveyed
under paragraph (b) of this section, the
interest may not be conveyed out of
trust or restricted status for 5 years.
§ 152.211 When must the Secretary
receive payment for the conveyance of the
land?
(a) We must receive any payment, on
behalf of the grantor, no later than when
the grantor executes the deed, unless:
(1) The grantor agrees to a deferred
payment;
(2) The purchaser is the Federal
Government; or
(3) The payment is escrowed.
(b) To proceed by a deferred payment
under paragraph (a) of this section, we
may develop a memorandum of sale, or
approve a memorandum of sale
developed by the parties to the sale, that
includes the following terms:
(1) A contract for delivery of title
upon payment in full of the amount of
the agreed payment;
(2) How revenues will be distributed
during the period of the deferred
payment;
(3) Late fees and penalties for failure
to comply with the terms of the sale;
(4) Contract adjustments;
(5) If the conveyance is to fee status,
terms requiring that the purchaser pay
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not less than 10 percent of the purchase
price in advance and terms for the
payment of the remaining amount in
installments plus interest acceptable to
the Secretary and the Indian owner; and
(6) Provisions for default, including a
provision that if the purchaser defaults
in the first or subsequent payments, all
payments, including interest, previously
made will be forfeited to the Indian
owner(s).
(c) With a deferred payment under
paragraphs (a) and (b) of this section, we
will hold the deed executed by the
grantor(s). We will approve and deliver
the deed only upon full compliance
with the terms of sale.
§ 152.212 How does the Secretary decide
whether to approve a negotiated sale, gift,
or exchange?
We will review the application and
may approve a negotiated sale, gift, or
exchange if:
(a) It does not increase the number of
fractional interests;
(b) There is no evidence of fraud or
undue influence, or criminal
inducement;
(c) There is no reason to believe the
grantor lacks the legal capacity to
convey; and
(d) The parcels conveyed and
acquired will have access to the parcel
as required by law.
§ 152.213 How does the negotiated sale or
exchange occur?
(a) The purchaser or grantee must
deposit with us any proceeds from a
negotiated sale or exchange and we
shall deposit the proceeds into the
grantor’s Individual Indian Money
account upon our approval.
(b) The grantor will execute the
conveyance document, which must:
(1) Include the date of execution and
the land description; and
(2) Comply with any boundary
standards established by the Department
of the Interior, if the parcel is conveyed
in trust.
(c) We must promptly record the
conveyance document at the Land Title
Records Office.
§ 152.214 When is a negotiated sale, gift,
or exchange effective?
(a) A negotiated sale, gift, or exchange
is effective when we approve the deed.
(b) If we approve the deed after the
grantor dies, the sale, gift, or exchange
is effective on the date the grantor
signed the deed.
(c) If land is purchased for the tribe
under the Indian Land Consolidation
Program, title will vest in the tribe on
the date the conveyance is approved,
subject to the type of lien described in
25 U.S.C. 2213(b).
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§ 152.215 How does an Indian Land
Consolidation Program lien attach?
A lien in the amount of the purchase
price will attach to the income derived
from any interest purchased for a tribe
under the Indian Land Consolidation
Program, until the lien has been
satisfied or we remove it. Pending such
satisfaction or removal, all transaction
documents entered into or approved
after the date of attachment must
provide for the payment of income
directly to us, for deposit in the
Acquisition Fund for the Indian Land
Consolidation Program.
§ 152.216 How is an Indian Land
Consolidation Program lien removed?
(a) In consultation with a tribe, we
may remove a lien on income derived
from an acquired interest.
(1) The removal may be based on
income derived from any interest
conveyed to the tribe under the Indian
Land Consolidation Program.
(2) The total of liens that we remove
in a year may not exceed the total
income deposited in the Acquisition
Fund for the tribe during that period.
(b) We may remove at any time a lien
on income derived from an acquired
interest if we make a finding that:
(1) The costs of administering the
interest will exceed the projected
income to be derived therefrom; or
(2) The amount secured by the lien
will not be recovered within a
reasonable period of time.
rwilkins on PROD1PC63 with PROPOSALS
§ 152.217 When can a co-owner acquire an
interest previously acquired on behalf of a
tribe?
This section applies when a fractional
interest has been conveyed to a tribe
under the Indian Land Consolidation
Program but remains subject to an
Indian Land Consolidation Program
lien.
(a) Any trust or restricted co-owner of
the parcel has an option to purchase the
interest upon the payment or pledge to
us of the full amount paid for that
interest under the following conditions:
(1) The co-owner must purchase all of
the acquired interests in the parcel
which are subject to a lien;
(2) The co-owner may not remove any
interest acquired from trust or restricted
status except in carrying out the
foreclosure of an approved mortgage in
accordance with subpart G of this part;
and
(3) The option to purchase will not be
available if the tribe already owns any
interest in the parcel that is not subject
to the lien, unless the tribe consents.
(b) To facilitate exercise of the
purchase option, a co-owner may
request that we provide notice of any
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initial acquisition in a given parcel on
behalf of a tribe under the Indian Land
Consolidation Program. In addition, we
will provide notice of subsequent
acquisition to the co-owner so long as
he or she has previously purchased an
interest offered in the same parcel.
§ 152.218 What if there are liens or other
encumbrances on the lands to be
conveyed?
(a) If there are encumbrances that may
transfer with the land, then no further
action will be taken.
(b) All financial liens, including
collection of construction charges or
other restrictions, must be cleared
before conveyance.
§ 152.219 How does a transaction affect
collection of construction costs for
irrigation projects?
(a) If the land will remain in trust or
restricted status following the sale, gift
or exchange, then collection of all
construction costs within Indian
irrigation projects is deferred as long it
remains in trust or restricted status.
However, the following conditions
apply:
(1) At the time of sale, we will deduct
delinquent operation and maintenance
charges from the proceeds of the sale
unless the seller makes acceptable
arrangements to provide for their
payment before approval of the sale; and
(2) We will insert a lien clause
covering all unpaid irrigation
construction costs, past and future, in
the instrument of conveyance issued to
purchasers of restricted or trust lands
that are under an Indian irrigation
project.
(b) If the land is conveyed in fee
status, then the person acquiring the
land must enter into an agreement to
pay:
(1) The pro rata share of the
construction of the project chargeable to
the land;
(2) All construction costs that accrue
in the future; and
(3) All future charges assessable to the
land which are based on the annual cost
of operation and maintenance of the
irrigation system.
Subpart D—Tribal Parcel Purchase
§ 152.301
subpart?
What lands are covered by this
This subpart applies to all parcels of
trust and restricted land, including
parcels in which fractional interests are
held in fee status.
non-consenting owners, including those
whose interests are held in fee status, to
a tribe, if the tribe:
(1) Owns at least 50 percent of the
interests in the parcel; or
(2) Has obtained the consents of the
owners of at least 50 percent of
ownership interests.
(b) The interests of the nonconsenting owners may include the
interests of any undetermined heirs or
devisees of trust or restricted interests
and the interests of any owners whose
whereabouts are unknown.
(c) An individual owner in authorized
possession of the entire parcel may
preempt the tribe’s application and
succeed to the tribe’s right to purchase,
under certain conditions as described in
§ 152.305.
(d) Our authority to approve and
implement a parcel purchase under this
section by executing the necessary
conveyance instrument is not affected or
diminished by the existence of a tribal
land consolidation plan approved under
subpart B of this part.
§ 152.303 How does a tribe apply for a
parcel purchase?
(a) A tribe may apply for a parcel
purchase when the tribe has either:
(1) Acquired at least 50 percent of the
interests in a parcel; or
(2) Obtained the consent of the
owners of at least 50 percent of such
interests, including interests already
owned by the tribe.
(b) An application for parcel purchase
must include:
(1) An appraisal prepared in
accordance with Uniform Standards for
Professional Appraisal Practice that
establishes the fair market value of the
parcel as of the date the application is
filed;
(2) A certified title report or consent
forms from the owners, reflecting that
the tribe has met the requirements of
paragraph (a) of this section; and
(3) A deposit of the purchase funds
needed to compensate the owners of all
of the non-consenting and non-tribal
consenting interests in the parcel, based
on the tribe’s appraisal.
(c) This paragraph applies when a
tribe has acquired at least 50 percent of
the interests in a parcel, but is unable
to furnish the deposit required by
paragraph (b)(3) of this section. Under
certain circumstances, we may provide
the funds needed to complete the parcel
purchase.
§ 152.302 What transactions are covered
by this subpart?
§ 152.304 How and when will owners be
notified of an application for tribal parcel
purchase?
(a) This subpart authorizes us to
convey the fractional interests of all
(a) Upon receiving an application for
parcel purchase under § 152.303, we
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must notify any non-consenting owners
of the tribe’s intent to purchase their
interests under this subpart, even if they
have previously refused to consent.
(1) The notice must provide the nonconsenting owners with copies of the
appraisal and advise that the tribe has
offered to purchase their interests at fair
market value or better, as reflected by
the tribe’s appraisal.
(2) If the fair market value is adjusted
upon review of the appraisal under
§ 152.306, we must again provide notice
of the offer to purchase under paragraph
(a) of this section.
(b) We will conduct a reasonable
search for any owners whose
whereabouts are unknown. We will give
notice to owners whose whereabouts are
unknown by publication in at least one
newspaper of general circulation in the
area of the parcel at least 90 days before
closing of the purchase.
(c) Any notice given under this
section must:
(1) Instruct the owners to submit
objections to the appraisal within 90
days from the date of the notice; and
(2) Advise that any owner who has
been in authorized possession of the
entire parcel for at least 3 years before
the tribe’s application can purchase the
parcel after notifying us of the intent to
purchase as required by § 152.305.
rwilkins on PROD1PC63 with PROPOSALS
§ 152.305 Can an individual owner
preempt and succeed a tribe’s right to
purchase?
(a) An individual owner in actual use
and possession of the entire parcel for
3 years before the tribe’s purchase
application may preempt and succeed to
the tribe’s right to purchase the interests
of other individual owners. To do this,
he or she must submit to us a notice of
intent to purchase within 90 days of
receiving the notice described in
§ 152.304. The individual owner’s
notice of intent to purchase must
include:
(1) Proof of authorized possession
during the requisite 3-year period; and
(2) A deposit of the purchase funds
needed to compensate the owners of the
remaining or non-purchaser’s interests,
based on the tribe’s appraisal.
(b) We will review the individual
owner’s notice of intent and determine
if the individual owner has been in
authorized possession of the entire
parcel for the requisite 3-year period.
(1) If the individual owner is found to
be qualified, we will refund the deposit
made by the tribe and process the
application of the owner exercising the
option to purchase.
(2) We must then advise the
individual owner that:
(3) All of the outstanding individually
owned interests in the parcel will be
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conveyed without further owner
consent, based on tribe’s original
application; and
(4) Any tribally owned interests in the
parcel will be conveyed only with the
consent of the tribe.
§ 152.306 How and when will the Secretary
review an application for parcel purchase?
(a) We will review the appraisal and
any objections to it after:
(1) The notice period required by
§ 152.304(a) ends; and
(2) We determine whether the
application is to be processed on behalf
of the initiating tribe or any individual
owner exercising an option to purchase.
(b) If we do not approve the appraisal,
we will establish fair market value and
notify the tribe what additional funds
are needed to compensate the
outstanding owners at fair market value.
If we approve the appraisal, we will
notify any objecting owner of the right
to appeal under Part 2 of this title,
before taking any further action on the
application.
(c) If it appears that all of the interests
in the parcel can be purchased by
agreement among the owners, we must
withhold action on the application and
assist in preparing the conveyance
documents needed to affect the parcel
purchase by negotiated conveyance. If it
appears that some of the interests
cannot be purchased by negotiation, we
must issue a formal decision on the
application and execute the conveyance
instrument needed to affect the parcel
purchase.
§ 152.307 How and when will the
conveyance instrument be executed?
(a) No sooner than 30 days after the
exhaustion of any appellant’s
administrative remedies, we must issue
a conveyance order transferring the
remaining or non-purchaser’s interests
in the parcel, subject to any existing
liens and encumbrances. The order may
include any interests owned by the tribe
if:
(1) A qualifying owner has exercised
his or her option to purchase; and
(2) The tribe has consented to convey
its interest by an appropriate
authorizing resolution.
(b) When we issue the conveyance
order, we must:
(1) Notify all owners whose interests
have been conveyed as required by
§ 152.304; and
(2) Record the conveyance order in
the appropriate Land Titles and Records
Office as required by part 150 of this
chapter, and in the appropriate county
office if interests in fee status are
involved.
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Subpart E—Consolidation by Sale of
Highly Fractionated Parcels
§ 152.401
What terms do I need to know?
As used in this subpart:
AIPRA means the American Indian
Probate Reform Act of 2004.
Consolidation by sale means a
procedure by which the ownership of
interests in a parcel of highly
fractionated land is consolidated by one
or more of the eligible bidders’ asking
the Secretary to sell the parcel.
Bona fide means that an owner of an
interest in the subject parcel has, in the
case of a residence, maintained it
continuously for the preceding 3 years
with permission or, in the case of a
farm, ranch or other business, operated
it on the parcel for the preceding 3
years, in each case under:
(1) A lease or other agreement that has
been approved by the Secretary;
(2) An owner management lease
under AIPRA; or
(3) Other documented permission.
Eligible bidder means:
(1) The tribe with jurisdiction over the
parcel subject to consolidation by sale;
(2) Any person who is a member or
eligible to be a member of the tribe with
jurisdiction over the parcel;
(3) Any person who is a member or
eligible to be a member of any other
tribe if such person already owns an
undivided interest in the parcel at the
time of the consolidation by sale; or
(4) Any lineal descendant of the
original allottee of the parcel who is a
member or eligible to be a member of a
tribe or, with respect to a parcel located
in California that is not within a tribe’s
reservation or not otherwise subject to a
tribe’s jurisdiction, who is a member or
eligible to be a member of a tribe or who
owns a trust or restricted interest in the
parcel.
Highly fractionated land means trust
or restricted land that has either:
(1) From 50 to 99 co-owners of
undivided trust or restricted interests,
with no single co-owner who owns an
undivided trust or restricted interest in
the parcel that is more than 10 percent
of the entire undivided ownership of the
parcel; or
(2) 100 or more co-owners of
undivided trust or restricted interests in
the parcel.
§ 152.402 What lands are subject to
consolidation by sale?
(a) Consolidation by sale applies to
trust and restricted lands, on or off the
reservation, that are highly fractionated
parcels.
(b) Consolidation by sale will include:
(1) All of the interests in such a
parcel, including interests held in fee
status; and
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(2) Surface and subsurface estates.
(c) If the surface and subsurface
estates have been severed, only the
surface estate can be consolidated by
sale under this subpart. Subsurface
estates that have been severed cannot be
consolidated by sale under this subpart.
§ 152.403 How do I apply to consolidate a
parcel by sale?
To apply for consolidating a parcel
you must:
(a) Be an eligible bidder; and
(b) Submit a completed consolidation
by sale application form.
§ 152.404 What must the Secretary do
before acting on an application for
consolidation by sale?
(a) Upon receiving an application, we
will decide:
(1) Whether the parcel is highly
fractionated;
(2) What owner consents are needed
and whether they have been obtained;
(3) Costs of providing the notice;
(4) If there are owners of interests in
the parcel who cannot be identified or
located, the procedures for locating
owners whose whereabouts are
unknown have been followed; and
(5) The fair market value of the
property.
(b) If we determine that a
consolidation for sale may proceed, then
we will promptly notify the applicant in
writing. The notice will include:
(1) A statement that the application is
complete;
(2) The estimated costs to the
applicant for providing notice to the
owners of the parcel, including the costs
of mailing and publishing the notice,
and a statement that the applicant must
either pay the costs or furnish a
sufficient bond to cover such costs;
(3) The date by which payment must
be made to confirm intent to proceed
with the consolidation by sale
application; and
(4) Any other information required to
process the application.
rwilkins on PROD1PC63 with PROPOSALS
§ 152.405 What consents are necessary for
a consolidation by sale?
(a) For all parcels, we will work with
the applicant to obtain consents of the
following owners of interests in the
parcel to be consolidated by sale:
(1) Consent of the tribe with
jurisdiction over the parcel if the tribe
owns an undivided interest in the
parcel;
(2) Consent of each owner who has
continuously maintained a bona fide
residence on the parcel or operated a
bona fide farm, ranch, or other business
on the parcel for the 3 years before the
application.
(b) For a parcel where any individual
owner’s total undivided interest in the
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parcel is worth more than $1,500, we
will seek additional consents. We will
work with the applicant to seek the
consent of owner(s) of at least 50
percent of the undivided ownership
interest in the parcel.
(1) Parents of minor owners and legal
guardians of incompetent owners are
considered the owners of their minor
children’s or ward’s interests.
(2) The calculation of the undivided
interest will not include the interest of
the owner requesting the consolidation.
(c) If necessary to obtain consent of at
least 50 percent of interests, and after
we have completed a search consistent
with § 152.409(b) and (c), we may
consent on behalf of:
(1) Heirs of trust or restricted interests
who cannot be determined;
(2) Minor or incompetent owners who
have no parent or legal guardian; or
(3) Missing owners.
§ 152.406 How will the Secretary notify
owners of the consolidation proceeding?
(a) Once we determine that a
consolidation by sale may proceed, we
will notify all owners of undivided
interests in the parcel and the tribe with
jurisdiction over the parcel. The notice
will include:
(1) A statement that the proceeding to
consolidate the parcel of land by sale
has been started;
(2) The legal description of the parcel;
(3) Each owner’s ownership interest
in the parcel as determined by the BIA
based on current records;
(4) Fair market value and instructions
for making a written request for a copy
of the appraisal;
(5) A statement that the owner may
submit written comments on or
objections to the proposed consolidation
by sale or to the appraisal within 90
days of receiving the notice;
(6) A statement that the owner must,
within the 90-day deadline, comment
on or object in writing to the
consolidation proceeding or the
appraisal in order to receive notice of
approval of the appraisal and right to
appeal;
(7) The address for requesting copies
of the appraisal and the address for
submitting comments or objections to
the appraisal or to the consolidation sale
proceeding;
(8) The name and telephone number
of the person to contact for information
regarding the proceeding, including the
time and date of auction of the parcel or
for submitting sealed bids;
(9) Notification that the tribe may
exercise its right to match the highest
bid on the parcel; and
(10) Notification that co-owners may
have a right to purchase the parcel when
the highest bidder has been determined.
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(b) The notice must be mailed by
certified mail, restricted delivery, to all
owners of interests in the parcel at
addresses found in our current records.
(c) If the notice is returned
undelivered, we will attempt to obtain
and use a current address for such
owner by a reasonable search of records
of:
(1) Departmental records;
(2) Local, state, and Federal agencies;
(3) Land records and phonebooks; and
(4) The tribe with jurisdiction over the
parcel or the tribe of which the noticed
owner is a member.
(d) If we are unable to find any owner,
then we will publish the notice:
(1) At least two times in a newspaper
of general circulation in the county or
counties in which the parcel is located
or, if the tribe with jurisdiction over the
parcel publishes a monthly tribal
newspaper or newsletter, one time in
the tribal newspaper or newsletter and
one time in the newspaper of general
circulation;
(2) By posting the notice
conspicuously in the headquarters or
administration building or other tribal
building of the tribe with jurisdiction
over the parcel in the most appropriate
location for such a posting; and
(3) By publishing notice in any other
place or by other means we deem
appropriate.
§ 152.407 What action does the Secretary
take on comments or objections?
(a) We will consider all written
comments and objections received
within 90 days of the notice. We may:
(1) Accept the appraisal if consistent
with the Uniform Standards for
Professional Appraisal Practice;
(2) Order a new appraisal; or
(3) Terminate the sale and notify by
certified mail, restricted delivery, the
applicant and all currently known
owners of interests in the parcel.
(b) If we receive no comments or
objections to the consolidation by sale
within 90 days of the notice, we will
accept the appraisal and proceed with
the sale.
§ 152.408 What happens if the Secretary
orders a new appraisal?
(a) If we order a new appraisal, where
the appraisal results in a lower
valuation of the land, we will provide
notice of the results of the new appraisal
to all owners of interests in the parcel,
and where the new appraisal results in
a value of the land that is equal to or
greater than that of the earlier appraisal,
we will provide the results of the new
appraisal to the tribe with jurisdiction
over the parcel and all persons who
submitted written comments on or
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objections to the proposed partition or
the appraisal, at addresses found in our
current records with a notice including
the following information:
(1) The results of the new appraisal;
(2) Notification that the owners can
submit written comments on or
objections to the proposed consolidation
by sale and/or objections to the
appraisal within 90 days of receiving
the notice;
(3) The address for requesting copies
of the appraisal and address for
submitting comments or objections to
the appraisal and/or consolidation sale
proceeding; and
(4) The name and telephone number
of the person to contact for information
regarding the proceeding, including the
time and date of auction of the parcel or
for submitting sealed bids.
(b) We will send the notice of the new
appraisal by certified mail, restricted
delivery, to the tribe with jurisdiction
over the parcel.
(c) If we accept the appraisal, we will
send a notice of acceptance to the tribe
with jurisdiction over the parcel and to
all persons who submitted written
comments on or objections to the
proposed consolidation or appraisal.
The notice will include:
(1) Results of the appraisal, which
will set the minimum bid for the
consolidation by sale;
(2) Rights of each interest owner to
review a copy of the appraisal;
(3) A statement that the land will not
be sold for less than the appraised
value;
(4) The time and date set for the
auction of the parcel, or for submitting
sealed bids; and
(5) The owner’s right to appeal, to
whom the appeal should be submitted,
and the owner’s burden to submit
evidence in support of the appeal.
rwilkins on PROD1PC63 with PROPOSALS
(a) An owner may submit an appeal
within 30 days of receiving the notice of
a new appraisal under § 152.408. The
procedures in part 2 of this chapter do
not apply to this process.
(b) Upon receiving the appeal, the
deciding official will refer the appraisal
issues for a desk review to an appraiser
who was not involved in the original
appraisal. The appraiser will provide
review conclusions to the deciding
official within 60 days of the referral.
After reviewing the appraiser’s review
conclusions, the deciding official will
decide all appraisal issues in the appeal
and also decide issues in the appeal
regarding the Secretary’s determination
to allow a consolidation sale of a
particular parcel.
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§ 152.410 How will the Secretary notify
owners of a sale after appeals have been
decided?
After all appeals are final, we will set
a time and date for a consolidation sale.
The sale will be conducted no sooner
than 30 days after we have mailed, via
certified mail, restricted delivery, a
notice of the sale to those owners
providing comments or objections to the
Notice of Appraisal and Sale or those
person(s) requesting notification of sale
and the tribe having jurisdiction over
the parcel. In addition, we will publish
a notice of sale:
(a) In a newspaper of general
circulation in the county or counties in
which the parcel is located or a tribal
newspaper;
(b) By posting the notice
conspicuously in the tribal headquarters
or administration building; and
(c) In such other locations and
manner as we deem necessary.
§ 152.411 Who may participate in an
auction or sealed bid sale?
We will conduct the sale either by
public auction or sealed bid as
appropriate.
(a) Only eligible bidders may
participate in the auction or sealed bid
sale.
(b) To participate in a sealed bid sale,
a bidder must submit a deposit of 10
percent of the full amount of the bid for
the parcel, including for his own
ownership interest in the parcel. The
value of the bidder’s ownership interest
will be deducted when the final
payment amount is calculated.
§ 152.412 How does a tribe reserve its
right to match the highest bid?
§ 152.409 How can an owner appeal a
consolidation by sale proceeding?
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(c) The deciding official decides all
issues in an appeal and issues a written
decision. A decision issued by the
deciding official is final for the
Department.
Before receiving the notice of sale
issued under § 152.415, the tribe must
have submitted a copy of the
authorizing tribal law or resolution or a
letter of a tribal officer authorized by
tribal law, stating the tribe’s intent to
reserve the right to match.
§ 152.413 How will the Secretary determine
the successful bidder?
(a) The parcel will be sold to the
highest bidder unless certain other
purchasers listed in paragraph (b) of this
section match the highest bid. The sale
price must be at least equal to the final
appraised fair market value.
(b) We will determine which entities
have a right to match the highest bid.
The right to match depends on the
following criteria:
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45221
(1) If the highest bidder is a member
of the tribe with jurisdiction over the
parcel, then he/she may purchase the
parcel, unless one of the restrictions in
paragraph (c) of this section applies; and
(2) If the highest bidder is a not a
member of the tribe with jurisdiction
over the parcel, then the highest bidder
may purchase the parcel, unless one of
the restrictions in paragraph (d) of this
section applies.
(c) A highest bidder who otherwise
qualifies under paragraph (b)(1) of this
section may not purchase the parcel if
either of the following conditions
applies:
(1) The owner of the largest interest is
a member of the tribe with jurisdiction
over the parcel, chooses to purchase the
parcel, and meets each of the following
requirements:
(i) The owner had submitted a bid on
the parcel at sale at least equaling the
fair market value;
(ii) At the time immediately before the
sale, the owner’s undivided interest in
the parcel was greater than that of any
other owner and equal to or greater than
20 percent of the entire undivided
ownership of the parcel; and
(iii) The owner submits to us, within
3 days of the date of auction or date for
submitting sealed bids, a written notice
of intent to purchase the parcel; or
(2) If no single owner is identified as
eligible to buy the parcel under
paragraph (c)(1) of this section, and two
or more owners who have equal
interests, which combined are greater
than any other individual interests in
the parcel and constitute at least 20
percent of the entire undivided
ownership in the parcel, have entered
into a written agreement that identifies
which of these owners has the right of
purchase.
(d) A highest bidder who otherwise
qualifies under paragraph (b)(2) of this
section may not purchase the parcel if
either of the following conditions
applies:
(1) The owner of the largest interest in
the parcel at the time of the sale is a
member of the tribe with jurisdiction
over the parcel and meets each of the
following requirements:
(i) The owner had submitted a bid on
the parcel at sale at least equaling the
fair market value;
(ii) At the time immediately before the
sale, the owner’s undivided interest in
the parcel was greater than that of any
other owner and equal to or greater than
20 percent of the entire undivided
ownership of the parcel;
(iii) The owner submits a written
notice of intent to purchase the parcel
to us, within 3 days of the date of
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auction or the date for submitting sealed
bids; and
(iv) The owner tenders the amount of
the highest bid within 30 days of the
date of auction or submission of sealed
bids; or
(2) No single owner is identified
under paragraph (d)(1) of this section,
then two or more owners who each have
identical interests equal to or greater
than 20 percent of the interests in the
parcel, match the highest bid and have
entered into a written agreement that
identifies which of these owners has the
right to match the highest bid.
(e) If no single owner or group of two
or more owners are identified under
paragraphs (d)(1) or (d)(2) of this
section, and the tribe with jurisdiction
has reserved its right under § 152.412 to
match the bid of the highest bidder, the
tribe may proceed to exercise this right.
It may do so by stating its intention to
match the bid within 6 business days
after the date of auction or for
submitting sealed bids.
§ 152.414 What happens if no bid matches
the fair market value?
may elect to terminate the consolidation
proceeding or reschedule the sale (see
§ 152.414(b)).
§ 152.416 How will proceeds be
distributed?
We will distribute the proceeds of sale
of the parcel to the owners of interests
in the parcel in proportion to the
ownership interest of each owner. We
will hold the following proceeds until
owners and heirs can be determined:
(a) Proceeds attributable to the sale of
interests of owners whose whereabouts
are unknown; and
(b) Proceeds of undetermined heirs, or
persons whose ownership interests have
not been recorded.
§ 152.417 Is Federal financial assistance
available to support a bidder’s purchase?
We may provide grants and low
interest loans to successful bidders at
consolidation sales of parcels, but this
assistance:
(a) Is limited to 20 percent of the
appraised value of the parcel sold; and
(b) Must be applied only toward the
purchase price of the parcel sold.
§ 152.418
§ 152.415 When must the highest bidder
pay for the purchase?
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(a) If no bid submitted equals or
exceeds the final appraised value, we
may either:
(1) Purchase the parcel for its
appraised fair market value for the tribe;
or
(2) Terminate the consolidation by
sale process.
(b) We retain the authority to
reschedule the date, place, and time of
the sale without providing formal prior
notice but will seek to notify interested
parties. The sale will be rescheduled as
promptly as possible, but no later than
15 days from the date of the original
sale.
This subpart applies to any parcel of
trust or restricted land with more than
one owner, irrespective of the number of
owners in the parcel. This subpart will
not apply to the subsurface interests in
a parcel, where those interests have
been severed so as to establish separate
surface and subsurface ownerships.
The highest bidder or the co-owner or
tribe that we determined had a right to
match or preempt the highest bid must
submit payment within 30 days of the
auction or the date for submitting sealed
bids. If payment is not tendered in 30
days, then the following process will
occur:
(a) The next successful bidder
identified in § 152.413 will be notified
and provided an opportunity to tender
payment in 30 days;
(b) If there is no entity identified in
§ 152.413 that has exercised its right to
match or preempt the highest bid, then
we will notify the next highest bidder
and provide an opportunity to tender
payment in 30 days;
(c) If there are no successful bids
higher than fair market value, then the
Secretary may purchase the parcel or
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What title is acquired?
(a) The title is acquired as follows:
(1) In trust, free and clear of any and
all title or ownership of all persons or
entities whose interest were subject to
the sale, except the United States; and
(2) Subject to valid existing rights,
such as mortgages, easements, or rightsof-way.
(b) We will execute an appropriate
transfer document effecting the sale and
recorded in the LTRO.
Subpart F—Partitions in Kind
§ 152.501
subpart?
§ 152.502
What lands are covered by this
When does this subpart apply?
This subpart applies in cases where
the owners have been unable to
accomplish a partition in kind by
exchange of deeds in accordance with
subpart C of this part. It authorizes us
to partition trust and restricted land
with multiple owners into smaller
parcels in which the interests of the
owners are unified or consolidated.
(a) If a partition which allocates
separate parcels to each of the owners
is not feasible, we may implement a
partial partition, in which a portion of
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the parcel remains in multiple
ownership.
(b) This subpart does not authorize us
to take any other action with respect to
land which cannot be partitioned to the
benefit of all of the owners.
§ 152.503 How can an owner initiate a
partition action?
Any owner of a fractional interest may
apply to us for a partition by submitting
a partition plan that contains the
following information:
(a) Legal descriptions of the parcel to
be partitioned and the smaller parcels to
be created therefrom, with an
accompanying survey if the smaller
parcels cannot be described by aliquot
parts;
(b) Appraisals of the parcel to be
partitioned and the smaller parcels to be
created from the parcel; and
(c) Identification of ownership of the
parcel to be partitioned and the
proposed ownership of the smaller
parcels to be created therefrom, with an
accompanying title report for the whole
parcel.
§ 152.504 How will you notify the
applicant’s co-owners of an application for
partition?
(a) Upon receiving an application for
partition under § 152.503, we must
notify the owners of the parcel to be
partitioned and provide them with
copies of the applicant’s partition plan.
We will take the following steps to
notify all owners:
(1) We will make a reasonable search
for any owners whose whereabouts are
unknown;
(2) After this search, we will send a
written notice of the application to all
owners whose whereabouts we could
determine; and
(3) To notify owners we could not
locate, we will publish a notice in
newspapers of general circulation in the
area of the parcel to be partitioned.
(b) Our notice will instruct the owners
to submit comments or objections or
alternative partition plans to us, within
90 days of the date that we mail and
publish the notice.
(c) We must treat the submission of an
alternative partition plan as a new
application requiring additional notice
and invitations for comment.
§ 152.505 How and when will you review
an application?
(a) At the end of the notice period
required by § 152.504(c), we must verify
the ownership of the parcel to be
partitioned, and review the partition
plans and any comments.
(1) If it appears that the parcel can be
partitioned by agreement among all the
owners, we must assist in preparing the
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conveyance documents needed to effect
a partition by exchange of interests.
(2) If it appears that the parcel cannot
be partitioned by agreement, we must
issue a formal decision on the
application(s).
(b) In evaluating an application to
partition, we must determine if the
parcel can be partitioned equitably
among all of the owners. In making that
determination, we will consider
whether:
(1) After partition, each owner would
hold property equal in value to that held
before partition, in proportion to the
interests of the other owners;
(2) The smaller parcels created by the
partition would be economically usable,
based upon characteristics such as size,
location, access, etc.;
(3) Any owner has a history of using
areas within the parcel to be partitioned,
that would justify those areas being
equitably partitioned and conveyed to
that owner; and
(4) The parcel to be partitioned
contains any sites of particular cultural,
historical, or other significance to more
than one owner, that would make it
inequitable to partition those sites and
convey them to a single owner.
(c) Upon a determination that a parcel
cannot be partitioned in an equitable
manner, we must notify the applicant of
the right to appeal under part 2 of this
chapter. Upon a determination that a
parcel can be partitioned in an equitable
manner, we must notify any owner that
objected or submitted an alternative
partition plan of his or her right to
appeal under part 2 of this chapter,
before taking any further action on the
application.
§ 152.506 When will you execute the
conveyance instruments?
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(a) No sooner than 30 days after
exhausting any appellant has exhausted
his or her administrative remedies, if
our determination under § 152.505(c)
has been affirmed, we must issue a
partition order. The order may include
reference to any existing liens and
encumbrances.
(b) Upon issuance of the order we will
notify all of the affected owners, in the
same manner as described in § 152.504.
We must then record the partition order
and any accompanying survey in the
appropriate LTRO, in accordance with
part 150 of this chapter.
Subpart G—Mortgages and Deeds of
Trust
§ 152.601
What does this subpart do?
This subpart applies to mortgaging of
parcels of trust or restricted land owned
by individuals, including parcels in
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which fractional interests are held in fee
status.
(a) This subpart explains how we can
approve mortgages or deeds of trust
executed by individual owners in cases
where all of the trust or restricted
interests in a parcel are:
(1) Encumbered; and
(2) Subject to foreclosure or sale if
there is a default.
(b) This subpart does not apply to any
of the following:
(1) Mortgages of fractional interests
held in fee status;
(2) Other types of encumbrances that
may be executed or approved in order
to secure a loan, including assignments
of income derived from trust or
restricted lands; or
(3) Mortgages or deeds of trust of
leasehold or other possessory interests.
§ 152.602 How do owners submit an
application for approval of a mortgage or
deed of trust?
Only the owner(s) or the proposed
mortgagee or beneficiary can submit an
application for approval of a mortgage
or deed of trust. The application must
include:
(a) An executed mortgage or deed of
trust to be approved;
(b) The promissory note defining the
amount of the loan to be secured and
other terms;
(c) Any other documents describing
the remedies available to the secured
party in the event of a default on the
loan;
(d) An appraisal or evaluation
furnished by the lender or borrower that
establishes the fair market value of the
parcel as of the date on which the
application for loan was filed;
(e) The loan application and any other
description of how the loan proceeds
will be used;
(f) Any credit report or credit analysis
required, obtained, or prepared by the
proposed mortgagee or beneficiary, with
a verification of the borrower’s income
or a description of other means of debt
coverage;
(g) Any title reports or title insurance
policies required or obtained by the
proposed mortgagee or beneficiary; and
(h) Any necessary environmental or
historic preservation documentation.
§ 152.603 How will the Secretary review
the application?
(a) Within 30 days of receiving a
complete application for approval of a
mortgage or deed of trust, we must
determine whether:
(1) The land to be encumbered has
been adequately described and the loan
documents have been properly
executed;
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(2) The loan-to-value ratio is
reasonable, based on the evidence of fair
market value in the application and the
lender’s valuation;
(3) The risk of default on the loan is
reasonable, based on the evidence of the
ability to repay in the application;
(4) All of the owners of trust and
restricted interests in the parcel have
executed the mortgage or deed of trust,
and any necessary consents have been
obtained from other lienholders or
encumbrancers; and
(5) The remedies available to the
mortgagee or beneficiary in the event of
a default on the loan, and any rights or
remedies available to the tribe having
jurisdiction over the parcel in the event
of a foreclosure or sale, are clearly
defined in the mortgage, deed of trust,
or other loan documents.
(b) If we decide not to approve the
mortgage or deed of trust, we will notify
the parties of their rights to appeal
under part 2 of this chapter.
(c) If we decide to approve the
mortgage or deed of trust, we must:
(1) Record the approved document in
the Land Titles and Records Office in
accordance with part 150 of this
chapter; and
(2) Request an updated title status
report reflecting the recordation.
(d) A decision to approve a mortgage
or deed of trust under this subpart is not
appealable under part 2 of this chapter
and is not considered to be a breach of
trust.
§ 152.604 How may the mortgage or deed
of trust be enforced?
(a) If an owner defaults on a loan
secured by an approved mortgage or
deed of trust, the encumbered land is
subject to foreclosure or sale in
accordance with the terms of the
approved document and either:
(1) The laws of the tribe having
jurisdiction over the parcel; or
(2) If there are no applicable tribal
laws, the laws of the state in which the
land is located.
(b) If there is a foreclosure or sale to
enforce the terms of an approved
mortgage or deed of trust, the United
States:
(1) Is not a necessary party; and
(2) Is not required to approve any
conveyance arising out of the
proceeding.
§ 152.605 Does the land remain in trust as
a result of foreclosure or sale?
(a) If the encumbered land is
purchased by a tribe or Indian as a
result of a foreclosure or sale
proceeding, title remains in trust or
restricted status.
(b) If the encumbered land is
purchased by any other party as a result
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of a foreclosure or sale proceeding, title
will be taken consistent with the laws
applicable to that foreclosure or sale
proceeding.
§ 152.606 How does the Paperwork
Reduction Act affect this part?
The collections of information
contained in §§ 152.3, 152.105, 152.107,
152.206, 152.217, 152.219, 152.303,
152.403, 152.412, 152.503, and 152.602
have been approved by the Office of
Management and Budget under 44
U.S.C. 3501 et seq. and assigned OMB
Control Number 1076–xxxx. Response is
required to obtain a benefit. A Federal
agency may not conduct or sponsor, and
you are not required to respond to a
collection of information unless the
form or regulation requesting the
information has a currently valid OMB
Control Number.
13. Revise part 179 to read as follows:
PART 179—LIFE ESTATES AND
PRESENT AND FUTURE INTERESTS
Sec.
179.1 What is the purpose of this part?
179.2 What terms do I need to know?
179.3 Who can hold a life estate?
179.4 Who can be the measuring life for a
life estate?
179.5 Who can be designated as a future
interest holder?
179.6 Who can be members of a class?
179.7 How are interest holders determined
if the conveyance document or order
contains conditions?
179.8 How are members to be determined if
there is an open class?
179.9 What are the privileges of a life
tenant?
179.10 What is the life tenant’s
responsibility to the remainderman?
179.11 How can a future interest holder
stop the life tenant from damaging his or
her interest and substantially
diminishing its value?
179.12 How will the Secretary distribute
income and principal between the life
tenant and the remainderman?
179.13 How will the value of a current life
estate and remainder be determined?
179.14 How does a life estate terminate?
179.15 What if I do not want an interest in
a life estate?
179.16 Why do I need to notify the
Secretary about the death of a life tenant?
179.17 How will term estates be treated?
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Authority: 86 Stat. 530; 86 Stat. 744; 94
Stat. 537; 96 Stat. 2515; 25 U.S.C. 2, 9, 372,
373, 487, 607, and 2201–11; 25 U.S.C. 2201
Note; Pub. L. 108–374, 118 Stat. 1773.
Cross-Reference: For regulations pertaining
to income, rents, profits, bonuses and
principal from Indian land and the recording
of title documents pertaining thereto, see
parts 15, Probate; 150, Land Records and
Title Documents; 152, Issuance of Patents in
Fee, Certificates of Competency, Removal of
Restrictions, and Sale of Certain Indian
Lands; 162, Leasing and Permitting; 163,
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General Forest Regulations; 166, General
Grazing Regulations; 169, Rights-of-Way over
Indian Lands; 170, Roads of the Bureau of
Indian Affairs; 212, Leasing of Allotted Lands
for Mining; 213, Leasing of Restricted Lands
of Members of the Five Civilized Tribes,
Oklahoma, for Mining; 215, Lead and Zinc
Mining Operations and Leases, Quapaw
Agency; 26 CFR 20.2031–7 Gross Estates,
Valuation of Annuities; 43 CFR part 4
subpart D, Rules Applicable in Indian Affairs
Hearings and Appeals; 43 CFR part 30,
Indian Probate Hearings Procedures; for
trespass see 25 CFR part 166.
§ 179.1
What is the purpose of this part?
This part sets forth the authorities,
policy, and procedures governing the
administration of life estates and
present and future interests in Indian
land by the Secretary of the Interior.
These regulations do not apply to any
use rights assigned to tribal members by
tribes exercising their jurisdiction over
tribal lands. This part does not apply to
any federal statutory rights to purchase
or otherwise acquire an interest in
Indian land reserved to an individual or
tribe.
§ 179.2
What terms do I need to know?
As used in this part:
Class means a group of persons who
share an interest in an estate.
Condition means a qualification or
restriction that must be satisfied or
occur before an estate or interest
commences, enlarges, reduces, or
terminates. Condition includes
limitations on the estates of grantor and
grantee. Condition does not include the
natural termination of a life estate or
term estate.
Contingent remainder means a
remainder:
(1) In an unborn person;
(2) In a non-specified person; or
(3) Subject to some other condition.
Contract bonus means consideration
paid or agreed to be paid as incentive
for execution of the contract.
Conveyance document means a legal
instrument that transfers an interest in
an estate. Conveyance document does
not include a will.
Disproportionately high means the
investment expenses exceeds the
interest income.
Estate means the interest which a
person has in Indian land. Estate
include a life estate.
Executory interest means a future
interest which cuts short or springs from
a preceding estate or interest that is cut
short by a condition.
Extant person means a living person
or legally recognized existing entity. A
living person does not include a child
in gestation except when the child in
gestation receives the estate or interest
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by probate order. If an interest is created
in a child in gestation in a probate
order, that a child will be treated as a
living person only if the child survives
at least 120 hours after its birth.
Future interest means an interest in an
estate with only a future right to
possession and enjoyment of the Indian
land, such as a remainder, executory
interest, or reversionary interest.
Grantee means a person who receives
an interest in Indian land.
Grantor means a person who transfers
an interest in Indian land.
Holder means a person who owns an
estate or interest in Indian land.
Income means the rents and profits
from Indian land and the interest on
invested principal.
Indian land means all lands held in
trust by the United States for individual
Indians or tribes; or all lands, titles to
which are held by individual Indians or
tribes, subject to Federal restrictions
against alienation or encumbrance.
Life estate means an estate in Indian
land the duration of which is measured
by the life of the life tenant or other
living person or persons.
Life tenant means a person or persons
who hold an interest in a life estate.
Open class means a class in which
membership has not been closed to
persons qualifying as members.
Open Mine Doctrine means the
doctrine which allows a holder of an
interest in a life estate to continue the
exploration, extraction, and depletion of
resources of the land and to receive any
rents, royalties, or profits, without the
consent of the remainderman, if the
activity is in progress or a lease or
contract is in effect when the life estate
vested. Open Mine Doctrine applies to
hard mineral extraction and oil and gas
production.
Order means a directive issued by the
Secretary or a court of competent
jurisdiction.
Person means a specific, extant
person, unless a specific section states
otherwise.
Present interest means an interest in
an estate in Indian land with a right to
possession and enjoyment that begins at
the moment a conveyance takes effect.
Principal means the corpus and
capital of an interest in an estate,
including any payment received for the
sale or diminishment of the corpus.
Remainder means a future interest
which follows the termination of a life
estate or term of years.
Remainderman means one or more
persons who hold a remainder.
Reversionary interest means an
interest that is held by the grantor and
arises when any preceding estate in a
grantee terminates other than by
condition.
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Secretary means the Secretary of the
Interior or authorized representative.
Term estate means an estate which
terminates upon the expiration of a
designated time period or surrender of
the interest by the interest holder.
Vested means having absolute right or
title in property.
We means the Secretary of the Interior
or authorized representative.
§ 179.3
Who can hold a life estate?
Any person can hold a life estate
subject to the following:
(a) Any life estate must have no
conditions in favor of the grantor or a
grantee; and
(b) If a life estate is granted to, or for
the life of, multiple persons, the
granting document must establish the
share of the estate each person is to
receive.
§ 179.4 Who can be the measuring life for
a life estate?
Any specific person or persons living
at the time we approve the conveyance
document or upon death of the decedent
may be the measuring life for a life
estate.
§ 179.5 Who can be designated as a future
interest holder?
Any person may be a future interest
holder. However, no future interest
subject to conditions in favor of the
grantor or a grantee is valid if the
conditions cannot be satisfied before
either:
(a) When we approve the conveyance
document; or
(b) When the decedent dies.
§ 179.6
Who can be members of a class?
The members of any class are those
persons who can be identified as
persons either when we approve the
conveyance or upon the death of the
decedent.
§ 179.7 How are interest holders
determined if the conveyance document or
order contains conditions?
(a) If we determine that the
conveyance document imposes any
condition on an interest in Indian land,
we will determine whether the
condition is satisfied either:
(1) When we approve the conveyance
document; or
(2) When the decedent dies.
(b) If the condition is established by
order of some other authority, we will
determine whether the condition is
satisfied based upon the order.
(c) It may happen that there are no
persons when we approve the
conveyance document, or at the death of
the decedent, or by the terms of the
order. In this case, the future interest
that would have vested in those persons
passes to the grantor or to the estate of
the grantor.
§ 179.8 How are members to be
determined if there is an open class?
(a) If a class is designated as a
recipient of an interest in a conveyance
document, we will:
(1) Identify the persons who are
members of the class when we approve
the conveyance document; and
(2) Close the class to any additional
persons who might otherwise qualify as
members.
(b) If a class is designated as a
recipient of an interest during the
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probate process under 43 CFR part 30,
we will:
(1) Identify the persons who are
members of the class as of the death of
the decedent; and
(2) Close the class to any additional
person who might otherwise qualify as
members of the class.
(c) We may close any class when we:
(1) Have received monies attributable
to the interests held by the class; and
(2) Have determined that there is at
least one person who can receive the
monies.
(d) We may close any open class for
any purpose that facilitates
identification of beneficiaries and assets
of the trust. We may then distribute the
trust assets to the beneficiaries.
§ 179.9 What are the privileges of a life
tenant?
(a) A life tenant is granted, for the
term of the life estate, the right to:
(1) Possess and use estate assets;
(2) Receive a share of the principal
and income produced by the estate as
set forth in § 179.12; and
(3) Sell the life estate described in the
conveyance document or order.
(b) The rights in paragraph (a) of this
section apply only in the absence of
specific provisions to the contrary in the
conveyance document or order.
§ 179.10 What is the life tenant’s
responsibility to the remainderman?
The provisions of this section apply
absent specific provisions to the
contrary in the conveyance document or
order.
(a) The life tenant has responsibilities
to the remainderman as shown on the
following table.
If the life estate was created by...
Then...
Except as to...
(1) Probate order before June 20,
2006, and the decedent died before June 20, 2006.
the responsibility of the life tenant to the remainderman is defined by
federal law and regulation in effect at the date of the creation of
the life estate.
distribution of monies from rents,
cash bonus and royalties and
valuation of the life estate and
remainder as set forth in this
part.
(2) Operation of law under 25
U.S.C. 2206 or federally approved tribal probate code approved under 25 U.S.C. 2205.
(i) The life tenant may use the land or structures on the land (including for extraction and production of minerals, oil, gas, and timber)
without the remainderman’s consent; and
(ii) The life tenant must not destroy the estate, commit malicious
waste or fail to reasonably manage the land in a manner consistent
with long-time use and trust status of the land.
the responsibility of the life tenant to the remainderman is defined by
federal law and regulation in effect on the date the life estate was
created.
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(3) Conveyance document before
the effective date of this part.
(4) Conveyance document after the
effective date of this part
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distribution of monies from rents,
cash bonuses, and royalties and
valuation of the life estate and
remainder as set forth in this
part.
(i) The life tenant may use the land or structures on the land (including for extraction and production of minerals, oil, gas, and timber)
without the remainderman’s consent; and
(ii) The life tenant must not destroy the estate, commit malicious
waste, or fail to reasonably manage the land in a manner consistent with long-time use and trust status of the land.
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(b) In order to preserve and protect
the trust, we must review and make a
final determination on any contract
involving trust assets, unless the law
provides otherwise.
(c) Our authority to consent to the
leasing or transfer of Indian land on
behalf of the interest holders is not
diminished or modified by this section.
§ 179.11 How can a future interest holder
stop the life tenant from damaging his or
her interest and substantially diminishing
its value?
If you are a future interest holder who
feels that a life tenant may be damaging
the estate, you may ask us to investigate
the use of the land. If we find that the
life tenant has taken actions not
consistent with § 179.10, we may
proceed as if the life tenant has
trespassed on the property and take
action under parts 162 and 212 of this
chapter.
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§ 179.12 How will the Secretary distribute
income and principal between the life
tenant and the remainderman?
(a) The Secretary must determine
whether:
(1) The Secretary ordered the
distribution of the interests in the life
estate and remainder in the probate of
an estate of a decedent who died on or
after June 20, 2006 or the Secretary
approved the conveyance document of
the interests after the effective date of
these regulations;
(2) An order or conveyance document
specifies a distribution of proceeds;
(3) The vested remainderman and life
tenant have entered into a written
agreement approved by the Secretary
providing for the distribution of
proceeds; or
(4) The life tenant is entitled, by any
document or agreement or by
application of state law, such as the
open mine doctrine, to receive the rents,
royalties, and profits attributable to the
exploration, extraction or depletion of
estate resources.
(b) If the Secretary determines that the
conveyance is the result of an order
distributing the probate estate of a
decedent who died on or after June 20,
2006, or the Secretary approved the
conveyance document of the interests
after the effective date of these
regulations and paragraphs (a)(2) and (3)
of this section do not provide otherwise,
then the Secretary must distribute all
income, principal, and contract bonuses
and royalties, to the life tenant until the
life estate is terminated.
(c) If the Secretary determines that the
conveyance is the result of an order
distributing the probate estate of a
decedent who died before June 20, 2006,
or the Secretary approved the
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conveyance document before the
effective date of this regulation and
paragraphs (a)(2), (3), and (4) of this
section do not provide otherwise, the
Secretary must:
(1) Distribute all rents and profits, as
income, to the current life tenant;
(2) Distribute any contract bonus onehalf each to the current life tenant and
the remainderman;
(3) In the case of mineral contracts,
invest the principal, with interest
income to be paid the life tenant during
the life estate, except in those instances
where the administrative cost of
investment is disproportionately high,
in which case paragraph (e) of this
section applies. The principal allocated
to the remainderman under this section
will be distributed to the remainderman
upon termination of the life estate. The
life tenant will receive distribution of
the principal allocated to the life tenant
immediately.
(d) If the Secretary determines that
paragraphs (a) (2), (3), or (4) of this
section provide otherwise, the Secretary
must distribute the income and
principal in accordance with those
provisions.
(e) In all other instances, the Secretary
shall distribute the principal
immediately according to the formulas
set forth in § 179.13. All proceeds
attributable to a contingent
remainderman or future interest holder
subject to class whose membership is
not closed will be invested in an
account with disbursement to take place
upon determination of the future
interest holder or closing of membership
of the class. The life tenant will receive
distribution of the principal allocated to
the life tenant immediately.
§ 179.13 How will the value of a current life
estate and remainder be determined?
(a) We will refer to the most current
version of Actuarial Table S, Valuation
of Annuities, obtained from 26 CFR
20.2031 to determine the value of your
life estate or remainder and distribute
principal under § 179.12(e).
(b) Table S specifies the share
attributable to the life estate and
remainder’s interest, given the age of the
life tenant and an established rate of
return. We will periodically review and
revise the percent rate of return to be
used to determine the share attributable
to the interests of the life tenant and the
remainderman. The life tenant will
receive the balance of the distribution
after the remainderman’s share has been
calculated.
(c) Applying Table S, we will use the
following formulae to determine the
value of the interests of the life tenant
and remainderman:
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(1) Value of Remainder = I * R, where
I is the total value to be distributed and
R is the remainder factor obtained from
Table S for a given life tenant’s age and
rate of return; and
(2) Value of Life Estate = I ¥ Value
of remainder, where I is the total value
to be distributed and the Value of
remainder was calculated above.
§ 179.14
How does a life estate terminate?
A life estate terminates upon
whichever occurs first:
(a) The death of the person or persons
used to measure the duration of the life
estate;
(b) The transfer by the life tenant of
the interest to the remainderman or
grantor; or
(c) The acquisition by the life tenant
of all future interests.
§ 179.15 What if I do not want an interest
in a life estate?
You may renounce your interest
during the probate process before the
order is issued or transfer your interest
by conveyance document to another
person.
§ 179.16 Why do I need to notify the
Secretary about the death of a life tenant?
(a) You should notify us of the death
of the life tenant or other person used
to measure the duration of the life estate
to ensure that:
(1) The records properly reflect the
present and future interests holders; and
(2) Any proceeds received from these
interests are correctly distributed to the
holders.
(b) See 25 CFR 15.104 for instructions
on how to notify the Secretary of the
death.
§ 179.17
How will term estates be treated?
For purposes of distribution of
income, cash bonuses, and principal, we
will treat term estates in the same
manner as a life estate.
Title 43—Public Lands: Interior
Subtitle A—Office of the Secretary of
the Interior
PART 4—DEPARTMENT HEARINGS
AND APPEALS PROCEDURES
14. Revise the authority citation for
part 4 to read as follows:
Authority: 5 U.S.C. 301; 25 U.S.C. 9, 372–
74, 410; 43 U.S.C. 1201, 1457; Pub. L. 99–
264, 100 Stat. 61, as amended.
15. Revise the cross reference for part
4, subpart D, to read as follows:
Cross-reference: For regulations pertaining
to the processing of Indian probate matters
within the Bureau of Indian Affairs, see 25
CFR part 15. For regulations pertaining to the
probate of Indian trust estates within the
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Probate Hearings Division, Office of Hearings
and Appeals, see 43 CFR part 30. For
regulations pertaining to the authority,
jurisdiction, and membership of the Board of
Indian Appeals, Office of Hearings and
Appeals, see subpart A of this part. For
regulations generally applicable to
proceedings before the Hearings Divisions
and Appeal Boards of the Office of Hearings
and Appeals, see subpart B of this part.
16. In subpart D, remove
undesignated center heading,
‘‘Determination of Heirs and Approval
of Wills, Except as to Members of the
Five Civilized Tribes and Osage Indians;
Tribal Purchases of Interests Under
Special Statutes.’’
17. Revise §§ 4.200 and 4.201 to read
as follows:
For provisions relating to . . .
(a) The following table is a guide to
the relevant contents of this part by
subject matter.
§§ 4.200 and 4.201.
§§ 4.310 through 4.318.
§§ 4.320 through 4.326.
(b) Except as limited by the provisions
of this part, the regulations in subparts
A and B of this part apply to these
proceedings.
§ 4.201
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How to use this subpart.
consult . . .
(1) All proceedings in subpart D ..............................................................
(2) Appeals to the Board of Indian Appeals generally .............................
(3) Appeals to the Board of Indian appeals from decisions of the Probate Hearings Division in Indian probate matters.
(4) Appeals to the Board of Indian Appeals from actions or decisions of
BIA.
(5) Determinations under the White Earth Reservation Land Settlement
Act of 1985.
§ 4.200
45227
Definitions.
As used in this subpart:
Administrative law judge (ALJ) means
an administrative law judge with OHA
appointed under the Administrative
Procedure Act, 5 U.S.C. 3105.
Agency means the Bureau of Indian
Affairs (BIA) agency office, or any other
designated office in BIA, having
jurisdiction over trust or restricted land.
This term also means any office of a
tribe that has entered into a contract or
compact to fulfill the probate function
under 25 U.S.C. 450f or 458cc.
BIA means the Bureau of Indian
Affairs within the Department.
Board means the Interior Board of
Indian Appeals (IBIA) within OHA,
authorized by the Secretary to hear,
consider, and determine finally for the
Department appeals taken by aggrieved
parties from actions by OHA judges on
petitions for rehearing or reopening, and
allowance of attorney fees, and from
actions of BIA officials as provided in
§ 4.1(b)(2) of this subtitle.
Day means a calendar day, unless
otherwise stated.
Decedent means a person who is
deceased.
Devise means a gift of property by
will. Also, to give a gift of property by
will.
Devisee means a person or entity that
receives property under a will.
Estate means the trust or restricted
land and trust personalty owned by the
decedent at the time of death.
Heir means any individual or entity
eligible to receive trust or restricted land
and trust personalty from a decedent in
an intestate proceeding.
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§§ 4.330 through 4.340.
§§ 4.350 through 4.357.
Indian probate judge (IPJ) means a
licensed attorney employed by OHA,
other than an ALJ, to whom the
Secretary has delegated authority to
hear and decide Indian probate cases
under 5 U.S.C. 556(b).
Interested party means any of the
following:
(1) Any potential or actual heir;
(2) Any devisee under a will;
(3) Any person or entity asserting a
claim against a deceased Indian’s estate;
(4) Any tribe having a statutory option
to purchase the trust or restricted
property interest of a decedent; or
(5) Any co-owner exercising a
purchase option.
Intestate means the decedent died
without a valid will.
Judge means an ALJ or IPJ.
LTRO means the Land Titles and
Records Office within BIA.
Probate means the legal process by
which applicable tribal, Federal, or state
law that affects the distribution of a
decedent’s estate is applied to:
(1) Determine the heirs;
(2) Determine the validity of wills and
determine devisees;
(3) Determine whether claims against
the estate will be paid from trust funds;
and
(4) Order the transfer of any trust or
restricted land or trust personalty to the
heirs, devisees, or other persons or
entities entitled by law to receive the
funds or land.
Restricted property means real
property, the title to which is held by an
Indian but which cannot be alienated or
encumbered without the consent of the
Secretary. For the purposes of probate
proceedings, restricted property is
treated as if it were trust property.
Except as the law may provide
otherwise, the term ‘‘restricted
property’’ as used in this part does not
include the restricted lands of the Five
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Civilized Tribes of Oklahoma or the
Osage Nation.
Trust property means real or personal
property, or an interest therein, for
which the United States holds the title
to the property in trust for the benefit of
an individual Indian or tribe.
Will means a written document
executed with the required formalities
and intended to pass the testator’s
property upon death.
18. Remove §§ 4.202 through 4.308,
along with their undesignated center
headings.
19. Revise § 4.320 to read as follows:
§ 4.320 Who may appeal a judge’s order
on petition for rehearing or reopening or
regarding purchase of interests in a
deceased Indian’s trust estate.
Any interested party who is adversely
affected has a right to appeal to the
Board from an order of a judge on a
petition for rehearing, a petition for
reopening, or regarding purchase of
interests in a deceased Indian’s trust
estate under part 30 of this subtitle.
20. Redesignate §§ 4.321 through
4.323 as §§ 4.324 through 4.326 and add
new §§ 4.321 through 4.323 to read as
follows:
§ 4.321 How to appeal a judge’s order on
petition for rehearing or reopening or
regarding purchase of interests in a
deceased Indian’s trust estate.
(a) Within 30 days after the date of the
judge’s order, an appellant must file a
written notice of appeal signed by the
appellant, the appellant’s attorney, or
other qualified representative as
provided in § 1.3 of this subtitle, with
the Board of Indian Appeals, Office of
Hearings and Appeals, U.S. Department
of the Interior, 801 North Quincy Street,
Arlington, Virginia 22203.
(b) A notice of appeal not timely filed
must be dismissed for lack of
jurisdiction.
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What an appeal must contain.
(a) The appellant must file a statement
of the errors of fact and law upon which
the appeal is based. This statement may
be included in either the notice of
appeal or an opening brief.
(b) The notice of appeal must include
the names and addresses of parties
served.
§ 4.323
Service of the notice of appeal.
(a) The appellant must deliver or mail
the original notice of appeal to the
Board of Indian Appeals.
(b) A copy must be served on the
judge whose decision is being appealed
as well as on all interested parties.
(c) The notice of appeal filed with the
Board must include a certification that
service was made as required by this
section.
21. Revise redesignated §§ 4.234
through 4.236 to read as follows:
§ 4.324
Record on appeal.
(a) Upon receiving a copy of the
notice of appeal, the judge whose
decision is being appealed must notify
the agency concerned to return the
duplicate record filed under subpart J of
part 30 of this subtitle to the designated
LTRO.
(b) The LTRO must conform the
duplicate record to the original.
Thereafter, the duplicate record will be
available for inspection either at the
LTRO or at the agency.
(c) If a transcript of the hearing was
not prepared, the judge will have a
transcript prepared and forwarded to
the Board within 30 days after receiving
a copy of the notice of appeal.
(d) The LTRO must forward the
original record on appeal to the Board
by certified mail.
(e) Any party may file an objection to
the record as constituted by the LTRO.
The party must file his or her objection
with the Board within 15 days after
receiving the notice of docketing under
§ 4.325.
§ 4.325
Docketing the appeal.
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The Board will docket the appeal
upon receiving the administrative
record from the LTRO and will provide
notice of the docketing to all interested
parties as shown by the record on
appeal. The docketing notice will
specify the time within which briefs
may be filed and will cite the
procedural regulations governing the
appeal.
§ 4.326
Disposition of the record.
(a) After the Board makes a decision
other than a remand, it must forward to
the designated LTRO:
(1) The record filed with the Board
under § 4.324(d); and
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(2) All documents added during the
appeal proceedings, including any
transcripts prepared because of the
appeal and the Board’s decision.
(b) The LTRO must conform the
duplicate record retained under
§ 4.324(b) to the original sent under
paragraph (a) of this section and forward
the conformed record to the agency
concerned.
22. Add part 30 to read as follows:
PART 30—INDIAN PROBATE
HEARINGS PROCEDURES
Subpart A—Scope of Part; Definitions
Sec.
30.100 How do I use this part?
30.101 Will the Secretary probate all the
land or assets in an estate?
30.102 What terms do I need to know?
Subpart B—Commencement of Probate
Proceedings
30.110 When does OHA commence a
probate case?
30.111 How does OHA commence a probate
case?
30.112 What must a probate file contain?
30.113 What will OHA do if it receives an
incomplete probate file?
30.114 What notice of the probate case will
OHA send me?
30.115 Can I review the probate file?
Subpart C—Judicial Authority and Duties
30.120 What authority does the judge have
in probate cases?
30.121 May a judge appoint a master in a
probate case?
30.122 Is the judge required to accept the
master’s recommended decision?
30.123 Will the judge determine matters of
status and nationality?
30.124 Can a judge find a person to be dead
by reason of unexplained absence?
30.125 May a judge reopen a probate case
to correct errors and omissions?
30.126 What happens if property was
omitted from the inventory of the estate?
30.127 What happens if property was
improperly included in the inventory of
the estate?
30.128 What happens if an error in BIA’s
estate inventory is alleged during the
probate proceeding?
Subpart D—Recusal of a Judge or ADM
30.130 When must a judge or attorney
decision maker (ADM) recuse himself or
herself from a probate case?
30.131 Where may a judge or ADM seek
guidance on recusal?
30.132 May an interested party to a probate
proceeding excuse a judge or ADM from
hearing a case?
30.133 May an interested party to a probate
proceeding request that a judge or ADM
recuse himself or herself?
30.134 What must the judge or ADM
consider when deciding whether to
recuse himself or herself?
30.135 What action will the judge or ADM
take after deciding to recuse himself or
herself?
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30.136 How will the case proceed after the
judge or ADM’s recusal?
30.137 Can I appeal the judge’s or ADM’s
recusal decision?
Subpart E—Claims
30.140 When may I file a claim against the
probate estate?
30.141 How must I file a creditor claim
against the probate estate?
30.142 Will a judge authorize payment of a
claim from the trust estate where the
decedent’s non-trust estate may be
available?
30.143 Are there any categories of claims
that may not be allowed?
30.144 May the judge authorize payment of
the costs of administering the estate?
30.145 When can a judge reduce or
disallow a claim?
30.146 What property is subject to claims?
30.147 What happens if there is not enough
trust personalty to pay all the claims?
30.148 Will interest or penalties charged
against claims after the date of death be
paid?
Subpart F—Consolidation and Settlement
Agreements
30.150 If the interested parties agree to
settle matters among themselves, what
does a judge do?
30.151 May the devisees or eligible heirs in
a probate proceeding consolidate their
interests?
30.152 May the parties to a settlement
agreement or consolidation agreement
waive valuation of trust property?
30.153 Is an order approving a
consolidation agreement or settlement
agreement a partition or sale transaction?
Subpart G—Purchase at Probate
30.160 What can be purchased at probate?
30.161 Who can purchase at probate?
30.162 Does property purchased at probate
remain in trust or restricted status?
30.163 Is consent required for a purchase at
probate?
30.164 What must I do to purchase at
probate?
30.165 Who will OHA notify of a request to
purchase at probate?
30.166 What will the notice of the request
to purchase at probate include?
30.167 How does OHA decide whether to
grant a request to purchase at probate?
30.168 What will the judge consider in
determining the market value of an
interest?
30.169 If I do not agree with the appraised
market value, what can I do?
30.170 What may I do if I disagree with the
judge’s determination to approve a
purchase at probate?
30.171 What happens when OHA grants a
request to purchase at probate?
30.172 When must the successful bidder
pay for the interest purchased?
30.173 What happens after the successful
bidder submits payment?
30.174 What happens if the successful
bidder does not pay within 30 days?
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Subpart H—Renunciation of Interest
30.180 May I give up an inherited interest
in trust or restricted property or trust
personalty?
30.181 How do I renounce an inherited
interest?
30.182 Who may receive a renounced
interest in trust or restricted land?
30.183 Who may receive a renounced
interest of less than 5 percent in trust or
restricted land?
30.184 Who may receive a renounced
interest in trust personalty?
30.185 Can my designated recipient refuse
to accept the interest?
30.186 Are renunciations that predate the
American Indian Probate Reform Act of
2004 valid?
30.187 May I revoke my renunciation?
30.188 Does a renounced interest vest in the
person who renounced it?
Subpart I—Summary Probate Proceedings
30.200 What is a summary probate
proceeding?
30.201 What does a notice of a summary
probate proceeding contain?
30.202 May I request that summary probate
proceeding be replaced by a formal
probate proceeding?
30.203 What must a summary probate
decision contain?
30.204 How do I seek review of a summary
probate proceeding?
30.205 What happens after I file a request
for de novo review?
30.206 What happens if nobody files for de
novo review?
Subpart J—Formal Probate Proceedings
Notice
30.210 How will I receive notice of the
formal probate proceeding?
30.211 Will the notice be published in a
newspaper?
30.212 Can I waive notice of the hearing,
the time limits, or form of notice?
30.213 What notice to a tribe is required in
a formal probate proceeding?
30.214 What must a notice of hearing
contain?
Depositions, Discovery, and Prehearing
Conference
30.215 How can I obtain documentation
related to the probate proceeding?
30.216 How does an interested party obtain
permission to take depositions?
30.217 How is a deposition taken?
30.218 How may the transcript of a
deposition be used?
30.219 Who pays for the costs of taking a
deposition?
30.220 How does an interested party obtain
written interrogatories and admission of
facts and documents?
30.221 May the judge limit the time, place,
and scope of discovery?
30.222 What happens if a party fails to
comply with discovery?
30.223 What is a prehearing conference?
Hearings
30.224 Can a judge compel a witness to
appear and testify at a hearing?
30.225 Are probate hearings open to the
public?
30.226 Must testimony in a probate
proceeding be under oath or affirmation?
30.227 Is a record made of formal probate
hearings?
30.228 What evidence is admissible at a
probate hearing?
30.229 Is testimony required for self-proved
wills, codicils, or revocations?
30.230 What if approval of the self-proved
will, codicil, or revocation is contested?
30.231 Who pays witnesses’’ costs?
30.232 May a judge schedule a
supplemental hearing?
30.233 What will the official record of the
probate case contain?
30.234 What will the judge do with the
original record?
30.235 What happens if a hearing transcript
has not been prepared?
Decisions in Formal Proceedings
30.236 What will the judge’s decision in a
formal probate proceeding contain?
30.237 What notice of the decision will the
judge provide?
30.238 May I file a petition for rehearing if
I disagree with the judge’s decision in
the formal probate hearing?
30.239 Does any distribution of the estate
occur while a petition for rehearing is
pending?
30.240 How will the judge address a
petition for rehearing?
30.241 Can I submit another petition for
rehearing?
30.242 When does the judge’s decision on
a petition for rehearing become final?
30.243 Can a closed probate case be
reopened?
30.244 How will the judge address my
petition for reopening?
30.245 What happens if the judge reopens
the case?
30.246 When will the decision on
reopening become final?
Subpart K—Miscellaneous Provisions
30.250 When does the anti-lapse provision
apply?
30.251 What happens if an heir or devisee
knowingly participates in the willful and
unlawful killing of the decedent?
30.252 Can a judge allow fees for attorneys
representing interested parties?
30.253 How must minors or other legal
incompetents be represented?
30.254 What happens when a person dies
without a valid will and has no heirs?
Subpart L—Tribal Purchase of Interests
under Special Statutes
30.260 What land is subject to a tribal
purchase option at probate?
30.261 What determinations with regard to
a tribal purchase option will a judge
make?
30.262 When will BIA furnish a valuation
of a decedent’s interests?
30.263 When is a final decision issued?
30.264 When may a tribe exercise its
statutory option to purchase?
30.265 How does a tribe exercise its
statutory option to purchase?
30.266 May a surviving spouse reserve a life
estate when a tribe exercises its statutory
option to purchase?
30.267 What if I disagree with the probate
decision regarding tribal purchase
option?
30.268 May I demand a hearing regarding
the tribal purchase option decision?
30.269 What notice of the hearing will the
judge provide?
30.270 How will the hearing be conducted?
30.271 How must the tribe pay for the
interests it purchases?
30.272 What are the Superintendent’s
duties upon payment by the tribe?
30.273 What action will the judge take to
record title?
30.274 What happens to income from land
interests during pendency of the
probate?
Authority: 5 U.S.C. 301; 25 U.S.C. 9, 372–
374, 410, 2201 et seq.; 43 U.S.C. 1201, 1457.
Cross-reference: For regulations pertaining
to the processing of Indian probate matters
within the Bureau of Indian Affairs, see 25
CFR part 15. For regulations pertaining to the
appeal of decisions of the Probate Hearings
Division, Office of Hearings and Appeals, to
the Board of Indian Appeals, Office of
Hearings and Appeals, see 43 CFR part 4,
subpart D. For regulations generally
applicable to proceedings before the Hearings
Divisions and Appeal Boards of the Office of
Hearings and Appeals, see 43 CFR part 4,
subpart B.
Subpart A—Scope of Part; Definitions
§ 30.100
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How do I use this part?
(a) The following table is a guide to
the relevant contents of this part by
subject matter.
For provisions relating to . . .
Consult . . .
(1) All proceedings in part 30 ...................................................................
(2) Claims against probate estate ............................................................
(3) Commencement of probate ................................................................
(4) Consolidation of interests ...................................................................
(5) Formal probate proceedings before an administrative law judge or
Indian probate judge.
(6) Probate of trust estates of Indians who die possessed of trust property.
§ § 30.100 through 30.102
§§ 30.140 through 30.148.
§§ 30.110 through 30.115.
§§ 30.150 through 30.153.
§§ 30.210 through 30.246.
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For provisions relating to . . .
Consult . . .
(7) Purchases at probate ..........................................................................
(8) Renunciation of interests ....................................................................
(9) Summary probate proceedings before an attorney decision maker ..
(10) Tribal purchase of certain property interests of decedents under
special laws applicable to particular tribes.
§§ 30.160
§§ 30.180
§§ 30.200
§§ 30.260
(b) Except as limited by the provisions
of this part, the regulations in part 4,
subparts A and B of this subtitle apply
to these proceedings.
§ 30.101 Will the Secretary probate all the
land or assets in an estate?
(a) We will probate only the trust or
restricted land or trust personalty in an
estate.
(b) We will not probate the following
property:
(1) Real or personal property other
than trust or restricted land or trust
personalty in an estate of a decedent;
(2) Restricted land derived from
allotments in the estates of members of
the Five Civilized Tribes (Cherokee,
Choctaw, Chickasaw, Creek and
Seminole) in Oklahoma; and
(3) Restricted interests derived from
allotments made to Osage Indians in
Oklahoma (Osage Nation) and Osage
headright interests owned by Osage
decedents.
(c) We will probate that part of the
estate of a deceased member of the Five
Civilized Tribes or Osage Nation who
owned a trust interest in land or a
restricted interest in land derived from
an individual Indian other than a
member of the Five Civilized Tribes or
Osage Nation.
(d) Except as limited by the
provisions in this part, the rules in
subparts A and B of part 4 of this
subtitle apply to all proceedings covered
by this part.
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§ 30.102
What terms do I need to know?
As used in this part:
Act means the Indian Land
Consolidation Act and its amendments
including Public Law 108–374, the
American Indian Probate Reform Act of
2004 (AIPRA).
Administrative law judge (ALJ) means
an administrative law judge with OHA
appointed under the Administrative
Procedure Act, 5 U.S.C. 3105.
Agency means the Bureau of Indian
Affairs (BIA) agency office, or any other
designated office in BIA, having
jurisdiction over trust or restricted land.
This term also means any office of a
tribe that has entered into a contract or
compact to fulfill the probate function
under 25 U.S.C. 450f or 458cc.
Attorney decision maker (ADM)
means a licensed attorney employed by
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through
through
through
through
30.177.
30.191.
30.206.
30.274.
OHA who conducts a summary
proceeding and renders a decision that
is subject to de novo review by an
administrative law judge or Indian
probate judge.
BIA means the Bureau of Indian
Affairs within the Department.
BLM means the Bureau of Land
Management within the Department.
Board means the Interior Board of
Indian Appeals (IBIA) within OHA,
authorized by the Secretary to hear,
consider, and determine finally for the
Department appeals taken by aggrieved
parties from actions by OHA judges on
petitions for rehearing or reopening, and
allowance of attorney fees, and from
actions of BIA officials as provided in
§ 4.1(b)(2) of this subtitle.
Chief ALJ means the Chief
Administrative Law Judge, Probate
Hearings Division, OHA.
Child includes any adopted child.
Codicil means a supplement or
addition to a will, executed with the
same formalities as a will. It may
explain, modify, add to, or revoke
provisions in an existing will.
Consolidation agreement means a
written agreement under the provisions
of 25 U.S.C. 2206(e) or 25 U.S.C.
2206(j)(9), by which a decedent’s heirs
and devisees consolidate interests in
trust or restricted land, entered during
the probate process, approved by the
judge, and implemented by the probate
order.
Creditor means any individual or
entity that has a claim for payment from
a decedent’s estate.
Day means a calendar day, unless
otherwise stated.
Decedent means a person who is
deceased.
Decision or order (or decision and
order) means a written document issued
by a judge making determinations as to
heirs, wills, devisees, and the claims of
creditors, and ordering distribution of
trust or restricted land or trust
personalty. Decision or order also means
the decision issued by an attorney
decision maker in a summary probate
proceeding.
De novo review means a process in
which an administrative law judge or
Indian probate judge, without regard to
the decision previously issued in the
case, will:
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(1) Review all the relevant facts and
issues in a probate case;
(2) Reconsider the evidence
introduced at a previous hearing;
(3) Conduct a formal hearing as
necessary or appropriate; and
(4) Issue a decision.
Department or DOI means the
Department of the Interior.
Devise means a gift of property by
will. Also, to give a gift of property by
will.
Devisee means a person or entity that
receives property under a will.
Eligible heir means, for the purposes
of the Act, 25 U.S.C. 2206, any of a
decedent’s children, grandchildren,
great grandchildren, full siblings, half
siblings by blood, and parents who are:
(1) Indian;
(2) Lineal descendents within two
degrees of consanguinity of an Indian;
or
(3) Owners of a trust or restricted
interest in a parcel of land for purposes
of inheriting—by descent, renunciation,
or consolidation agreement—another
trust or restricted interest in such a
parcel from the decedent.
Estate means the trust or restricted
land and trust personalty owned by the
decedent at the time of death.
Formal probate proceeding means a
trial-type proceeding, conducted by a
judge, in which evidence is obtained,
through testimony of witnesses and the
receipt of relevant documents.
Heir means any individual or entity
eligible to receive trust or restricted land
and trust personalty from a decedent in
an intestate proceeding.
I means, in question headings, an
heir, a devisee, an owner of trust or
restricted land or trust personalty, or a
creditor.
IIM account means funds held in trust
in an individual Indian money (IIM)
account by OST or by a tribe performing
this function under a contract or
compact. These funds are also referred
to as ‘‘trust personalty.’’
Indian means, for the purposes of the
Act, 25 U.S.C. 2206:
(1) Any person who is a member of a
federally recognized Indian tribe, is
eligible to become a member of any
Indian tribe, or is an owner (as of
October 27, 2004) of a trust or restricted
interest in land;
(2) Any person meeting the definition
of Indian under 25 U.S.C. 479; and
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(3) With respect to the inheritance
and ownership of trust or restricted land
in the State of California under 25
U.S.C. 2206, any person described in
paragraph (1) or (2) of this definition or
any person who owns a trust or
restricted interest in a parcel of land in
that State.
Indian probate judge (IPJ) means a
licensed attorney employed by OHA,
other than an ALJ, to whom the
Secretary has delegated authority to
hear and decide Indian probate cases
under 5 U.S.C. 556(b).
Interested party means any of the
following:
(1) Any potential or actual heir;
(2) Any devisee under a will;
(3) Any person or entity asserting a
claim against a deceased Indian’s estate;
(4) Any tribe having a statutory option
to purchase the trust or restricted
property interest of a decedent; or
(5) Any co-owner exercising a
purchase option.
Intestate means the decedent died
without a valid will.
Judge means an ALJ or IPJ.
LTRO means the Land Titles and
Records Office within BIA.
Minor means an individual who has
not reached the age of majority as
defined by the applicable law.
OHA means the Office of Hearings
and Appeals within the Department.
OST means the Office of the Special
Trustee for American Indians within the
Department.
Per stirpes means by right of
representation, dividing an estate into
equal shares based on the number of
decedent’s surviving children and
predeceased children who left issue and
who survive the decedent. The share of
a predeceased child of the decedent is
divided equally among the predeceased
child’s surviving children.
Probate means the legal process by
which applicable tribal, Federal, or
State law that affects the distribution of
a decedent’s estate is applied to:
(1) Determine the heirs;
(2) Determine the validity of wills and
determine devisees;
(3) Determine whether claims against
the estate will be paid from trust funds;
and
(4) Order the transfer of any trust or
restricted land or trust personalty to the
heirs, devisees, or other persons or
entities entitled by law to receive the
funds or land.
Probate staff means a DOI or tribal
employee who is trained in Indian
probate matters and who is responsible
for preparing the probate file.
Purchase option at probate refers to
the process by which eligible purchasers
can purchase a decedent’s interest
during the probate proceeding.
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Restricted property means real
property, the title to which is held by an
Indian but which cannot be alienated or
encumbered without the consent of the
Secretary. For the purposes of probate
proceedings, restricted property is
treated as if it were trust property.
Except as the law may provide
otherwise, the term ‘‘restricted
property’’ as used in this part does not
include the restricted lands of the Five
Civilized Tribes of Oklahoma or the
Osage Nation.
Secretary means the Secretary of the
Interior or an authorized representative.
The authorized representative of the
Secretary for the performance of probate
functions is BIA. The authorized
representative of the Secretary for
adjudication of probate is OHA.
Summary probate proceeding means
the consideration of a probate file
without a hearing and on the basis of
the probate file received from the BIA.
A summary probate proceeding may be
conducted if the estate involves only
trust personalty and does not exceed the
amount of $5,000 on the date of the
death of the decedent.
Superintendent means a BIA
Superintendent or other BIA official,
including a field representative or one
holding equivalent authority.
Testate means that the decedent
executed a valid will.
Testator means a person who has
executed a valid will.
Trust personalty means all funds and
securities of any kind that are held in
trust in an IIM account or otherwise
supervised by the Secretary.
Trust property means real or personal
property, or an interest therein, for
which the United States holds the title
to the property in trust for the benefit of
an individual Indian or tribe.
We means the Secretary of the Interior
or an authorized representative as
defined in this section.
Will means a written document
executed with the required formalities
and intended to pass the testator’s
property upon death.
You means, in regulatory text, an heir
or devisee or owner of trust or restricted
land or trust personalty, unless a
specific section defines ‘‘you’’ to have
another meaning.
Subpart B—Commencement of
Probate Proceedings
§ 30.110 When does OHA commence a
probate case?
OHA commences probate of a trust
estate when OHA receives a probate file
from BIA.
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§ 30.111 How does OHA commence a
probate case?
OHA commences a probate case by
confirming the case number assigned by
BIA, assigning the case to a judge or
ADM, and designating the case as a
summary probate proceeding or formal
probate proceeding.
§ 30.112
What must a probate file contain?
A probate file must contain the
documents and information described
in 25 CFR 15.302 and any other relevant
information.
§ 30.113 What will OHA do if it receives an
incomplete probate file?
If OHA determines that the probate
file it received from BIA is not complete
and the probate file is not accompanied
by the certification described in 25 CFR
15.303, OHA may:
(a) Request the missing information
from BIA;
(b) Dismiss the case and return the
probate file to BIA for further
processing;
(c) Issue a subpoena or request for
production as appropriate to obtain the
missing information; or
(d) Proceed with a hearing in the case.
§ 30.114 What notice of the probate case
will OHA send me?
OHA will send a notice of hearing to
potential heirs, devisees, and creditors if
the case is designated as a formal
probate proceeding. In a case designated
as a summary probate proceeding, OHA
will send potential heirs and devisees a
notice of the designation. OHA also will
inform potential heirs and devisees that
a formal probate proceeding may be
requested instead of the summary
process.
§ 30.115
Can I review the probate file?
After OHA receives the case, any
interested party may examine the
probate file during regular business
hours and make copies upon payment of
the reasonable cost of copying.
Subpart C—Judicial Authority and
Duties
§ 30.120 What authority does the judge
have in probate cases?
A judge has the general authority to:
(a) Determine the manner, location,
and time of hearings conducted under
this part, and otherwise to administer
the cases assigned to the judge;
(b) Determine the heirs of any Indian
or eligible heir who dies intestate
possessed of trust or restricted property;
(c) Approve or disapprove a will
disposing of trust or restricted property;
(d) Accept or reject any full or partial
renunciation of interest in both testate
and intestate proceedings;
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(e) Approve or disapprove any
consolidation agreement;
(f) Conduct sales at probate and
provide for the distribution of interests
in the probate decision and order;
(g) Allow or disallow claims by
creditors;
(h) Order the distribution of trust
property to heirs and devisees and
determine and reserve the share or
shares that any potential heir or devisee
who is missing but not found to be
deceased by a court of competent
jurisdiction is entitled;
(i) Determine whether a tribe has
jurisdiction over the trust or restricted
property and, if the tribe has
jurisdiction, the right of the tribe to take
a decedent’s trust or restricted property
under 25 U.S.C. 2206(a)(2)(B)(v),
2206(a)(2)(D)(iii)(V), or other applicable
laws;
(j) Issue subpoenas for the appearance
of persons, the testimony of witnesses,
and the production of documents at
hearings or depositions, under 25 U.S.C.
374, upon the judge’s initiative or,
within the judge’s discretion, upon the
request of an interested party;
(k) Administer oaths and affirmations;
(l) Order the taking of depositions and
determine the scope and use of
deposition testimony;
(m) Order the production of
documents and records and determine
the scope and use of the documents and
records;
(n) Rule on matters involving
interrogatories and any other requests
for discovery, including admissions;
(o) Grant or deny stays, waivers, and
extensions;
(p) Hear, consider, and rule on
motions, requests, and objections;
(q) Rule on the admissibility of
evidence;
(r) Permit the cross examination of
witnesses;
(s) Appoint a guardian ad litem for
any interested party who is a minor or
found by the judge to be not competent
to represent his or her own interests;
(t) Inquire of persons and agencies in
order to complete the record in probate
proceedings and to protect the integrity
of the record;
(u) Hear and consider the claims of
creditors against the estate, allowing or
dismissing claims based on the evidence
and the law;
(v) Provide information to interested
parties about the right to appeal and
concerning consolidation agreements,
renunciations of interest, and purchases
at probate as necessary;
(w) Administer the probate case and
regulate the course of any hearing and
the conduct of witnesses, interested
parties, attorneys, and attendees at a
hearing;
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(x) Determine and impose sanctions
and penalties allowed by law; and
(y) Take such action as necessary to
preserve the trust assets of an estate.
§ 30.121 May a judge appoint a master in
a probate case?
(a) In the exercise of any authority
under this part, a judge may appoint a
master:
(1) To conduct hearings on the record
and hear evidence as to all or specific
issues in probate cases as assigned by
the judge;
(2) To make written reports including
findings of fact and conclusions of law;
and
(3) To propose recommended
decisions to the judge.
(b) Upon filing, the master’s report
and recommended decision will be
mailed or delivered to the interested
parties.
§ 30.122 Is the judge required to accept
the master’s recommended decision?
No, the judge is not required to accept
the master’s recommended decision.
(a) An interested party adversely
affected by the report and recommended
decision may file objections within 30
days of the mailing or delivery of the
report. An objecting party must
simultaneously mail or deliver copies of
the objections to all other interested
parties.
(b) Any other interested party may file
responses to the objections within 15
days of the mailing or delivery of the
objections. A responding party must
simultaneously mail or deliver a copy of
his or her responses to the objecting
party.
(c) The judge will review the record
of the proceedings heard by the master,
including any objections and responses
filed, and determine whether the
master’s report and recommended
decision is supported by the evidence of
record.
(1) If the judge approves the report
and finds that the recommended
decision is supported by the evidence of
record and is consistent with applicable
law, the judge will enter an order
adopting the recommended decision.
(2) If the judge does not approve the
report or finds that the recommended
decision is not supported by the
evidence of record, the judge may
remand the case to the master for further
proceedings consistent with instructions
in the remand order, or the judge may
hear the case de novo and enter a
decision.
(3) If the judge finds that the master’s
findings of fact are supported by the
evidence in the record but the
conclusions of law or the recommended
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decision is not consistent with
applicable law, the judge will issue an
order adopting the findings of fact,
making conclusions of law, and entering
a decision.
§ 30.123 Will the judge determine matters
of status and nationality?
(a) The judge in a probate proceeding
will determine:
(1) The status of eligible heirs or
devisees as Indians;
(2) The nationality or citizenship of
eligible heirs or devisees; and
(3) Whether any of the Indian heirs or
devisees with U.S. citizenship are
individuals for whom the supervision
and trusteeship of the United States is
terminated.
(b) A judge may make determinations
under this section in a current probate
proceeding or in a completed probate
case after a reopening without regard to
a time limit.
§ 30.124 Can a judge find a person to be
dead by reason of unexplained absence?
(a) A judge may make a finding that
an heir, devisee, or a person for whom
a probate case has been opened is dead,
by reason of extended unexplained
absence, and include the date of death
in the finding. The judge will make a
finding of death only upon clear and
convincing evidence.
(b) In any proceeding to determine
whether a person is dead, the following
rebuttable presumptions apply:
(1) If credible evidence establishes
that the absent person has had contact
with any person or entity during the 6year period preceding the hearing, the
absent person will be presumed alive;
and
(2) If clear and convincing evidence
establishes that none of the persons or
entities with whom the absent person
was known to have had regular contact
previously has had any such contact
during the 6-year period preceding the
hearing, the absent person will be
presumed dead.
§ 30.125 May a judge reopen a probate
case to correct errors and omissions?
(a) Upon the written request of an
interested party, or on the judge’s own
motion, at any time, a judge has the
specific authority to reopen a probate
case to:
(1) Determine the correct identity of
the original allottee, or any heir or
devisee;
(2) Determine whether different
persons received the same allotment;
(3) Decide whether trust patents
covering allotments of land were issued
incorrectly or to a non-existent person;
(4) Determine whether more than one
allotment of land had been issued to the
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same person under different names and
numbers or through other errors in
identification; or
(5) Address any other error deemed by
the judge sufficient to order the case to
be reopened.
(b) The judge will notify interested
parties if a probate case is reopened and
will refer the case for proceedings in
accordance with this part.
§ 30.126 What happens if property was
omitted from the inventory of the estate?
(a) This section applies when, after
issuance of a decision and order in a
formal probate proceeding, it is found
that trust or restricted property or
interest therein belonging to a decedent
has not been included in the inventory.
(1) The inventory can be modified to
include the omitted property for
distribution under the original decision.
(2) Modification to include the
omitted property in the decedent’s
inventory may be made either
administratively by BIA or by a
modification order by a judge.
(3) Copies of all modifications must
be furnished to the agency and to all
those persons who share in the estate.
(b) When the property to be included
takes a different line of descent from
that shown in the original decision, BIA
must notify the judge. The judge will:
(1) Conduct a hearing, if necessary,
and issue a decision; and
(2) File a record of the proceeding
with the designated LTRO.
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§ 30.127 What happens if property was
improperly included in the inventory of the
estate?
(a) When, after a decision and order
in a formal probate proceeding, it is
found that property has been
improperly included in the inventory of
an estate, the inventory must be
modified to eliminate this property. A
petition for modification may be filed by
the superintendent of the agency where
the property is located, or by any
interested party.
(b) A judge will review the merits of
the petition and record of the title from
the LTRO upon which the modification
is to be based and enter an appropriate
decision. If the decision is entered
without a formal hearing, the judge
must give notice of the action to all
parties whose rights are adversely
affected, allowing them 30 days in
which to show cause why the decision
should not then become final.
(c) Where appropriate, the judge may
conduct a formal hearing at any stage of
the modification proceeding. The
hearing must be scheduled and
conducted in accordance with the rules
of this part. The judge will enter a final
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decision based on his or her findings,
modifying or refusing to modify the
property inventory. The judge’s decision
will become final at the end of 30 days
from the date it is mailed, unless an
aggrieved party files a notice of appeal
within that period. Notice of entry of the
decision must be given in accordance
with this part.
(d) A party aggrieved by the judge’s
decision may appeal it to the Board.
(e) BIA must lodge the record of all
proceedings with the designated LTRO.
§ 30.128 What happens if an error in BIA’s
estate inventory is alleged during the
probate proceeding?
(a) This section applies when, during
a probate proceeding, an interested
party alleges that the estate inventory
prepared by BIA is inaccurate and
should be corrected. Alleged
inaccuracies may include, but are not
limited to, the following:
(1) Trust property interests should be
removed from the inventory because the
decedent executed a gift deed or a gift
deed application during the decedent’s
lifetime, and BIA had not, as of the time
of death, determined whether to
approve the gift deed or gift deed
application;
(2) Trust property interests should be
removed from the inventory because a
deed through which the decedent
acquired the property is invalid;
(3) Trust property interests should be
added to the inventory because the
decedent attempted to acquire
additional trust property interests
during the decedent’s lifetime, and BIA
had not, as of the time of death,
determined whether to approve the
acquisition; and
(4) Trust property interests included
in the inventory are improperly
described.
(b) When an error in the estate
inventory is alleged, the OHA deciding
official will refer the matter to BIA for
resolution in accordance with
procedures found at 25 CFR parts 150
(Land Records and Title Documents),
151 (Land Acquisitions), and 152
(Issuance of Patents in Fee, Certificates
of Competency, Removal of Restrictions,
and Sale of Certain Indian Lands),
together with the appeal procedures
found at 25 CFR part 2 (Appeals from
Administrative Actions).
(1) If a final determination resolving
the inventory challenge is made before
a final decision is issued in the probate
proceeding, the probate decision will
reflect the inventory determination.
(2) If a final determination resolving
the inventory challenge is not made
before a final decision is issued in the
probate proceeding, the final probate
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decision will include a reference to the
pending inventory challenge and note
that the probate decision is subject to
administrative modification once the
inventory dispute has been resolved.
Subpart D—Recusal of a Judge or
ADM
§ 30.130 When must a judge or attorney
decision maker (ADM) recuse himself or
herself from a probate case?
A judge or attorney decision maker
(ADM) must recuse himself or herself
from a probate case in which the judge
or ADM determines:
(a) That the judge or ADM has a
conflict of interest; or
(b) That the judge’s or ADM’s
impartiality may reasonably be
questioned under recognized canons of
judicial ethics.
§ 30.131 Where may a judge or ADM seek
guidance on recusal?
A judge or ADM may consult and seek
guidance for the determinations listed
in § 30.130 from:
(a) The code of judicial conduct for
any State in which the judge or ADM is
a member of the bar; or
(b) The code of judicial conduct for
the Federal courts.
§ 30.132 May an interested party to a
probate proceeding excuse a judge or ADM
from hearing a case?
No. No party to a probate proceeding
may excuse a judge or ADM from
hearing a case.
§ 30.133 May an interested party to a
probate proceeding request that a judge or
ADM recuse himself or herself?
Yes. If you are an interested party to
a probate proceeding, you may request
that a judge or ADM recuse himself or
herself by filing a written motion for
recusal.
(a) The motion for consideration of
recusal must state, by affidavit or
verified motion, the facts and
circumstances that you ask the judge or
ADM to consider.
(b) You must file a motion for recusal
before the judge or ADM files the
decision and order in a probate
proceeding.
(c) A motion for recusal may not delay
proceedings unless you also request,
and the judge or ADM grants, an
extension of time for the hearing of the
motion.
§ 30.134 What must the judge or ADM
consider when deciding whether to recuse
himself or herself?
The grounds for which a judge or
ADM must consider recusal include,
without limitation:
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(a) Personal bias or prejudice
concerning an interested party or an
interested party’s attorney;
(b) Personal knowledge of disputed
evidentiary facts obtained before the
filing of the probate case or obtained ex
parte during the pendency of the
probate proceeding;
(c) Prior service as an attorney
concerning a matter or for an interested
party in the current probate proceeding;
(d) Service as a witness, conservator,
guardian, or guardian ad litem in a case
involving an interested party; and
(e) Economic interest in the outcome
of the case by the judge or ADM, the
spouse of the judge or ADM, or a person
within the third degree of relationship
to the judge or ADM or the judge’s or
ADM’s spouse.
§ 30.135 What action will the judge or ADM
take after deciding to recuse himself or
herself?
If the judge or ADM decides to recuse
himself or herself, the judge or ADM
must immediately file a certificate of
recusal in the file of the affected case
and notify the Chief ALJ, all interested
parties, any counsel in the case, and the
affected BIA agencies. The judge or
ADM is not required to state the reason
for recusal.
§ 30.136 How will the case proceed after
the judge or ADM’s recusal?
Within 30 days of the filing of the
certificate of recusal, the Chief ALJ will
appoint another judge or ADM to hear
the case, and will notify the parties
identified in § 30.135 of the
appointment.
§ 30.137 Can I appeal the judge’s or ADM’s
recusal decision?
If you have filed a motion seeking
recusal of a judge or ADM under
§ 30.133 and the judge or ADM denies
the motion, you may seek immediate
review of the denial by filing a request
with the Chief ALJ under § 4.27(c)(3) of
this subtitle.
Subpart E—Claims
rwilkins on PROD1PC63 with PROPOSALS
§ 30.140 When may I file a claim against
the probate estate?
(a) A claim by a person or entity as
a creditor against the estate of an Indian
may be filed with BIA before BIA
transfers the probate file to OHA.
(b) Claims by a creditor also may be
filed through OHA with the judge
assigned to the case.
(1) Claims filed by a creditor through
OHA must be filed before the
conclusion of the first hearing.
(2) Claims that are not filed by the
conclusion of the first hearing will be
barred forever.
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§ 30.141 How must I file a creditor claim
against the probate estate?
(a) A creditor must submit an affidavit
under oath setting forth the debt alleged
and an itemized statement of the debt,
including copies of any documents
necessary to prove the indebtedness,
such as signed contracts, signed notes,
mortgages, account records, billing
records, and journal entries.
(b) The creditor’s affidavit also must
state whether:
(1) Parties other than the decedent are
responsible for any portion of the debt
alleged;
(2) Any known or claimed offsets to
the alleged debt exist; and
(3) The creditor or anyone on behalf
of the creditor has filed a claim or
sought reimbursement against the
decedent’s non-trust or restricted
property in any other judicial or quasijudicial proceeding.
(c) The itemized statement must
include:
(1) The date and amount of the
original debt;
(2) The dates, amounts, and identity
of the payor for any payments made;
(3) The dates, amounts, product or
service, and identity of any person
making charges on the account;
(4) The balance remaining on the debt
on the date of the decedent’s death; and
(5) Any notification by the decedent
that the amount claimed was disputed
by the decedent.
§ 30.142 Will a judge authorize payment of
a claim from the trust estate where the
decedent’s non-trust estate may be
available?
No claim will be paid from trust or
restricted property if the judge
determines that the decedent’s non-trust
estate may be available to pay the claim.
§ 30.143 Are there any categories of
claims that may not be allowed?
(a) Claims for care may not be allowed
except upon clear and convincing
evidence that the care was given on a
promise of compensation and that
compensation was expected.
(b) A claim cannot be allowed if it is:
(1) Based on a written or oral contract,
express or implied; and
(2) The claim has existed for such a
period as to be barred by the applicable
tribal or state laws at date of decedent’s
death.
(c) Claims sounding in tort not
reduced to judgment in a court of
competent jurisdiction, and other
unliquidated claims not properly within
the jurisdiction of OHA, are barred.
(d) Claims of a State or any of its
political subdivisions, are barred if they
relate to:
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(1) Payments for general assistance,
welfare or similar assistance;
(2) Social security; or
(3) Claims for old-age assistance.
§ 30.144 May the judge authorize payment
of the costs of administering the estate?
Upon motion of the superintendent or
an interested party, the judge may
authorize payment of the costs of
administering the estate as they arise
and before the allowance of any claims
against the estate.
§ 30.145 When can a judge reduce or
disallow a claim?
The judge has discretion to decide
that part or all of an otherwise valid
claim is unreasonable, reduce the claim
to a reasonable amount, or disallow the
claim in its entirety. If a claim is
reduced, the judge will order payment
only of the reduced amount.
§ 30.146
claims?
What property is subject to
(a) Except as prohibited by law, all
trust personalty of a decedent on hand
or accrued at time of death, including
bonds, unpaid judgments, and accounts
receivable, may be used for the payment
of claims, whether the right, title, or
interest that is taken by an heir or
devisee remains in trust or passes out of
trust.
(b) Trust personalty that accrues after
the date of the decedent’s death from
trust or restricted property is not
available for payment of claims against
the estate.
§ 30.147 What happens if there is not
enough trust personalty to pay all the
claims?
If, at the date of death, there is not
enough trust personalty to pay all
claims, the claims may be ordered paid
on a pro rata basis or disallowed in their
entirety. The unpaid balance of any
claims will not be enforceable against
the estate after the estate is closed.
§ 30.148 Will interest or penalties charged
against claims after the date of death be
paid?
Interest or penalties charged after the
date of death will not be paid.
Subpart F—Consolidation and
Settlement Agreements
§ 30.150 If the interested parties agree to
settle matters among themselves, what
does a judge do?
(a) A judge may approve a settlement
agreement among interested parties
resolving any issue in the probate
proceeding if the judge finds that:
(1) All parties to the agreement are
advised as to all material facts;
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(2) All parties to the agreement
understand the effect of the agreement
on their rights; and
(3) It is in the best interest of the
parties to settle.
(b) In considering the proposed
settlement agreement, the judge may
consider evidence of the respective
values of specific items of property and
all encumbrances.
(c) If the judge approves the
settlement agreement under paragraph
(a) of this section, the judge will issue
an order approving the settlement
agreement and distributing the estate in
accordance with the agreement.
rwilkins on PROD1PC63 with PROPOSALS
§ 30.151 May the devisees or eligible heirs
in a probate proceeding consolidate their
interests?
The devisees or eligible heirs may
consolidate interests under 25 U.S.C.
2206(e) in trust property already owned
by the heirs and under 25 U.S.C.
2206(j)(9) in property from the
inventory of the decedent’s estate. This
does not include interests in Alaska.
(a) A judge may approve a written
agreement among devisees or eligible
heirs in a probate case to consolidate the
interests of a decedent’s devisees or
eligible heirs.
(1) To accomplish consolidation, the
agreement may include conveyances
among decedent’s devisees or eligible
heirs of:
(i) Interests in trust or restricted land
in the decedent’s trust inventory; and
(ii) Interests of the devisees or eligible
heirs in trust or restricted land which
are not part of the decedent’s trust
inventory.
(2) The parties must offer evidence
sufficient to satisfy the judge of the
percentage of ownership held and
offered by a party. They may offer
evidence of the value of each interest in
trust or restricted land included in the
agreement if the interest is not part of
the decedent’s estate.
(3) If the decedent’s devisees or
eligible heirs enter into an agreement,
the parties to the agreement are not
required to comply with the rules and
requirements of the Secretary otherwise
applicable to conveyances by deed.
(b) If the judge approves an
agreement, the judge will issue an order
distributing the estate in accordance
with the agreement.
(c) In order to approve an agreement,
the judge must find that:
(1) The agreement to consolidate is
voluntary;
(2) All parties to the agreement know
the material facts;
(3) All parties to the agreement
understand the effect of the agreement
on their rights; and
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(4) The agreement accomplishes
consolidation.
(d) An interest included in an
approved agreement may not be
purchased at probate without consent of
the owner of the consolidated interest.
§ 30.152 May the parties to a settlement
agreement or consolidation agreement
waive valuation of trust property?
The parties to a settlement agreement
or to a consolidation agreement may
waive valuation of trust property
otherwise specified by regulation or the
Secretary’s rules and requirements. If
the parties waive valuation, the waiver
must be included in the written
agreement.
§ 30.153 Is an order approving a
consolidation agreement or settlement
agreement considered a partition or sale
transaction?
An order issued by a judge approving
a consolidation or settlement agreement
will not be interpreted as a partition or
sale transaction within the provisions of
25 CFR part 152.
Subpart G—Purchase at Probate
§ 30.160 What can be purchased at
probate?
An eligible purchaser may purchase,
during the probate of a trust or restricted
estate, all or part of the estate of a
person who died after June 20, 2006.
(a) Any interest in trust or restricted
property, including a life estate that is
part of the estate, may be purchased at
probate with the following exceptions:
(1) If an interest is included in an
approved consolidation agreement, that
interest may not be purchased at probate
without consent of the owner; and
(2) An interest that a devisee will
receive under a valid will cannot be
purchased without the consent of the
devisee.
(b) A purchase option must be
exercised before an order is entered and
be included as part of the order in the
estate.
§ 30.161
Who can purchase at probate?
An eligible purchaser is:
(a) Any devisee or eligible heir who
is taking an interest in the same parcel
of land in the probate proceeding;
(b) Any person who owns an
undivided trust or restricted interest in
the same parcel of land;
(c) The Indian tribe with jurisdiction
over the parcel containing the interest;
or
(d) The Secretary on behalf of the
tribe.
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§ 30.162 Does property purchased at
probate remain in trust or restricted status?
The property interests purchased at
probate must remain in trust or
restricted status.
§ 30.163 Is consent required for a
purchase at probate?
(a) The heir’s consent is not required
if:
(1) The interest the heir will receive
in the parcel, subject to the probate
proceeding, is less than 5 percent of the
entire undivided ownership interest in
the parcel; and
(2) The heir was not residing on the
parcel on the date of the decedent’s
death.
(b) The heir’s consent is required if:
(1) The interest the heir will receive
in the parcel, subject to the probate
proceeding, is 5 percent or more of the
entire undivided ownership interest in
the parcel; or
(2) The interest the heir will receive
is less than 5 percent of the entire
undivided ownership interest in the
parcel and the heir was residing on the
parcel on the date of the decedent’s
death.
§ 30.164 What must I do to purchase at
probate?
Any eligible purchaser must submit a
written request to OHA to purchase at
probate before the decision and order
issues.
§ 30.165 Who will OHA notify of a request
to purchase at probate?
OHA will provide notice of a request
to purchase at probate to:
(a) The heirs or devisees and the
Indian tribe with jurisdiction over the
interest, by first class mail;
(b) The BIA agency with jurisdiction
over the interest, by first class mail;
(c) All parties who have submitted a
written request for purchase, by first
class mail; and
(d) All other eligible purchasers, by
posting written notice in at least five
conspicuous places in the vicinity of the
place of hearing and one conspicuous
place at the agency with jurisdiction
over the parcel.
§ 30.166 What will the notice of the request
to purchase at probate include?
The notice posted by OHA will
include:
(a) The manner of sale;
(b) The date, time, and place of the
sale;
(c) A description of the interest to be
sold; and
(d) The appraised market value of the
parcel obtained from BIA with the
probate file containing the interest to be
sold and an estimate of the market value
allocated to the interest being sold.
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§ 30.167 How does OHA decide whether to
grant a request to purchase at probate?
OHA will sell the interest to the
eligible purchaser submitting the
highest bid at not less than the market
value of the interest.
§ 30.168 What will the judge consider in
determining the market value of an
interest?
(a) An appraisal of the market value
of the interest to be sold at probate must
be based upon an appraisal which gives
appropriate consideration to the
fractionated ownership interest in the
parcel. The appraisal must meet the
standards in the Uniform Standards for
Professional Appraisal Practice
(USPAP).
(b) The judge will use the appraised
market value of the interest being sold
and determine the allocation of
proceeds of sale among the heirs based
upon the fractional ownership interests
in the parcel.
(c) In allocating the proceeds of the
sale of an interest subject to a life estate,
the allocation among the holder of the
life estate and the holders of any
remainder interests, the judge must use
the ratios in 25 CFR part 179.
(d) The judge will order the
distribution of the sale proceeds in
accordance with the determination
made in paragraph (b) of this section.
§ 30.169 If I do not agree with the
appraised market value, what can I do?
(a) If you are a potential purchaser or
the heir whose interest is to be sold and
you disagree with the appraised market
value, you may:
(1) File a written objection with OHA
within 30 days from the mailing of
notice provided under § 30.167, stating
the reasons for the objection; and
(2) Within 15 days after filing a
written objection, submit any
supporting documentation showing why
the market value should be modified.
(b) The judge will consider any
objections, make a determination of the
market value and whether to approve
the purchase under § 30.169, and notify
all interested parties.
rwilkins on PROD1PC63 with PROPOSALS
§ 30.170 What may I do if I disagree with
the judge’s determination to approve a
purchase at probate?
(a) If you are an interested party
adversely affected by the judge’s
determination under § 30.171(b), you
may file a written objection with the
judge within 15 days after the mailing
of the determination under § 30.171(b).
(1) The written objection must state
the reasons for the objection and request
interlocutory appeal of the
determination to the Board.
(2) You must furnish a copy of the
written objection to the other interested
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parties and the agencies, stating that you
have done so in your written objection.
(b) If the objection is timely filed, the
judge must forward a certified copy of
the complete record in the case to the
Board for review of the determination.
The judge will not issue the decision in
the probate case until the Board has
issued its decision on interlocutory
review of the determination.
(c) If the objection is not timely filed,
the judge will issue an order denying
the request for review as untimely and
will furnish copies of the order to the
interested parties and the agencies. If
you disagree with the decision of the
judge as to whether your objection was
timely filed, you may file a petition for
rehearing under § 30.238 after the judge
issues a decision under § 30.236.
§ 30.171 What happens when OHA grants
a request to purchase at probate?
When OHA grants a request to
purchase at probate, it will:
(a) Notify the successful bidder by
first class mail; and
(b) Notify OST, the agency that
prepared the probate file, and the
agency having jurisdiction over the
interest sold, including the following
information:
(1) The estate involved;
(2) The parcel and interest sold;
(3) The identity of the successful
bidder; and
(4) The amount of the bid.
§ 30.172 When must the successful bidder
pay for the interest purchased?
The successful bidder must pay to
OST, by cashier’s check or money order
via the lockbox, or electronic funds
transfer, the full amount of the purchase
price within 30 days from the mailing
of the notice of successful bid.
§ 30.173 What happens after the
successful bidder submits payment?
(a) When OST receives payment, it
will notify OHA, and the judge enters an
order approving the sale and directing
the LTRO to record the transfer of title
to the interest of the successful bidder.
The order will state the date of the title
transfer, which is the date payment is
received.
(b) OST will:
(1) Deposit the payment in the
decedent’s estate account; and
(2) Distribute the money from the sale
to the heir, devisee, or spouse whose
interest was sold, in accordance with
each respective interest.
(b) The time for payment may not be
extended.
(c) Any partial payment received from
the successful bidder will be returned.
Subpart H—Renunciation of Interest
§ 30.180 May I give up an inherited interest
in trust or restricted property or trust
personalty?
If you are 18 years old and not under
a legal disability, you may renounce an
inherited interest in trust or restricted
property, including a life estate, or in
trust personalty.
§ 30.181 How do I renounce an inherited
interest?
You can renounce an inherited
interest in trust personalty or restricted
property, including an inherited life
estate. To do this, you must file with the
judge, before the filing of the final order
in the probate case, a signed and
acknowledged declaration specifying
the interest renounced
(a) You may retain a life estate in
specific interests in trust or restricted
land and renounce the remainder
interests by filing the written
declaration with the judge.
(b) If you renounce an interest in trust
or restricted land under 25 U.S.C. 2206,
you may either:
(1) Designate an eligible person or
entity meeting the requirements of
§ 30.184 as the recipient; or
(2) Renounce without making a
designation.
(c) If you choose to renounce your
interests in favor of a designated
recipient, the judge must notify the
designated recipient.
§ 30.182 Who may receive a renounced
interest in trust or restricted land?
If the interest renounced is an interest
in land, a person may renounce only in
favor of:
(a) An eligible heir of the testator;
(b) A person eligible to be a devisee
of the interest, if the renouncing person
is a devisee of the interest under a valid
will, and is:
(1) A lineal descendant of the testator;
(2) A person who owns a preexisting
undivided trust or restricted interest in
the same parcel;
(3) Any Indian; or
(4) The tribe with jurisdiction over the
interest.
§ 30.174 What happens if the successful
bidder does not pay within 30 days?
(a) If the successful bidder fails to pay
the full amount of the bid, the sale will
be canceled and the interest in the trust
or restricted property will be distributed
as determined by the judge.
§ 30.183 Who may receive a renounced
interest of less than 5 percent in trust or
restricted land ?
An interest in trust or restricted land
that is not disposed of by a valid will
and that represents less than 5 percent
of the entire undivided ownership of a
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parcel of land may be renounced in
favor of a single heir. The single heir
may renounce only in favor of the
Indian tribe with jurisdiction over the
interest or one person who is:
(a) Another eligible heir;
(b) An Indian related to the heir by
blood; or
(c) A co-owner of another trust or
restricted interest in the same parcel.
(a) If the renunciation directs the
interest to an eligible person or entity,
the interest passes directly to that
person or entity;
(b) If the renunciation does not direct
the interest to an eligible person or
entity, the renounced interest passes to
the heirs of the decedent as if the person
renouncing the interest had predeceased
the decedent.
§ 30.184 Who may receive a renounced
interest in trust personalty?
Subpart I—Summary Probate
Proceedings
If the interest renounced is an interest
in trust personalty, a person may
renounce in favor of any person or
entity.
(a) The Secretary will maintain and
continue to manage trust personalty
transferred by renunciation to a
following person or entity:
(1) A lineal descendant of the testator;
(2) A person who owns a preexisting
undivided trust or restricted interest in
the same parcel of land;
(3) The tribe with jurisdiction over the
interest in land; or
(4) Any Indian.
(b) The Secretary will directly
disburse and distribute trust personalty
transferred by renunciation to a person
or entity who is not eligible under
§ 30.185.
§ 30.185 Can my designated recipient
refuse to accept the interest?
Yes. The recipient may refuse to
accept the interest. The refusal must be
made in writing and filed before the
judge. If the designated recipient of the
renounced interest refuses to accept that
interest, then the renounced interest
passes to the heirs of the decedent as if
the person renouncing the interest had
predeceased the decedent.
§ 30.186 Are renunciations that predate
the American Indian Probate Reform Act of
2004 valid?
Any renunciation filed and
implemented in a probate order issued
before the effective date of the American
Indian Probate Reform Act of 2004 is
ratified.
§ 30.187
May I revoke my renunciation?
No. A written renunciation is
irrevocable after the judge accepts the
renunciation and enters the final order
in the probate proceeding.
§ 30.200 What is a summary probate
proceeding?
(a) A summary probate proceeding is
the consideration of a probate case
without a formal hearing on the basis of
the probate file received from BIA. A
summary probate proceeding may be
conducted by a judge, an ADM, or a
master, as determined by the
supervising judge.
(b) A decedent’s estate may be
processed summarily if the estate
involves only cash and the total value
of the estate does not exceed $5,000 on
the date of death.
§ 30.201 What does a notice of a summary
probate proceeding contain?
The notice of summary probate
proceeding will contain the following:
(a) Notice of the right of any
interested party to request treatment of
the probate case as a formal probate
proceeding;
(b) A copy of the OHA–7, a statement
of the IIM account balance, and a copy
of the death certificate, except to a
creditor who is not an eligible heir;
(c) A notice that the only claim of a
creditor that will be considered is that
of a person defined as an eligible heir
under these regulations, or of any
person or entity who filed as a creditor
with the BIA before the transfer of the
probate file to OHA, with a copy of the
claim;
(d) A notice that an interested party
may renounce or disclaim an interest, in
writing, either generally or in favor of a
designated person or entity; and
(e) Any other information determined
to be relevant by OHA.
rwilkins on PROD1PC63 with PROPOSALS
§ 30.188 Does a renounced interest vest in
the person who renounced it?
§ 30.202 May I request that a summary
probate proceeding be replaced by a formal
probate proceeding?
No. An interest in trust or restricted
property renounced under § 30.181 is
not considered to have vested in the
renouncing heir or devisee, and the
renunciation is not considered a transfer
by gift of the property renounced to the
renouncing person.
Yes. Interested parties who are
devisees or eligible heirs have 30 days
from the mailing of the notice to file a
written request for a formal probate
hearing, to file a claim as a creditor, or
to renounce or disclaim an interest in
the estate.
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§ 30.203 What must a summary probate
decision contain?
The written decision in a summary
probate proceeding must be in the form
of findings of fact and conclusions of
law, with a proposed decision and order
of distribution.
(a) The decision must contain all of
the following elements:
(1) One of the following:
(i) If the decedent left legal heirs or
devisees, the names of each heir or
devisee with the identifying numbers
assigned by BIA, their birth dates,
relationships to the decedent, the
distribution of shares of each heir or
devisee, and the names of the recipients
of renounced or disclaimed interests; or
(ii) If the decedent did not leave legal
heirs or devisees, a statement to that
effect;
(2) Citations to the law of descent and
distribution in accordance with which
the decision is made;
(3) A statement allowing or
disallowing claims against the estate in
accordance with this part, and an order
directing the amount of payment of all
approved claims;
(4) A statement approving or
disapproving any renunciation;
(5) A statement of whether the heirs
or devisees are Indian, non-Indian, or
eligible to hold property in trust status;
(6) A statement advising all interested
parties of their right to seek de novo
review in accordance with this part, and
that, if they fail to do so, the decision
will become final 30 days after the
mailing of the written decision; and
(7) In a testate case only, a statement
that:
(i) Approves or disapproves a will;
(ii) Interprets provisions of the
approved will; and
(iii) Describe the share each devisee is
to receive, subject to any encumbrances.
(b) When the judge or ADM issues a
decision, the judge must issue a notice
of the decision to all parties who have
or claim any interest in the estate, and
mail or deliver a copy of the notice,
together with a copy of the decision, to
each affected agency and to each
interested party.
§ 30.204 How do I seek review of a
summary probate proceeding?
(a) If you are an interested party who
is adversely affected by the written
decision in a summary probate
proceeding, you may seek de novo
review of the case by filing a request
with the OHA office that issued the
decision.
(b) The request for de novo review
must be in writing and signed, and must
contain the following information:
(1) The name of the decedent;
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(2) A description of the requestor’s
relationship to the decedent;
(3) An explanation of what errors the
requestor alleges were made; and
(4) An explanation of how the
requestor is adversely affected by the
decision.
(c) You must send or deliver the
request to OHA within 30 days after the
date the decision is mailed.
§ 30.205 What happens after I file a
request for de novo review?
(a) Within 10 days of receiving a
request for de novo review, OHA will
notify the agency that prepared the
probate file, all other affected agencies,
and all interested parties of the de novo
review, and assign the case to a judge.
(b) The judge will review the merits
of the case, conduct a hearing as
necessary or appropriate under the
regulations in this part, and issue a new
decision in accordance with this part.
§ 30.206 What happens if nobody files for
de novo review?
If no interested party requests de novo
review within 30 days of the date of the
written order, OHA will send:
(a) The final order confirming the
written decision to all interested parties
with notice of the right to file a petition
for rehearing under this part;
(b) The complete original record and
the final order to the agency that
prepared the probate file; and
(c) A copy of any relevant portions of
the record to any other affected agency.
Subpart J—Formal Probate
Proceedings
(b) A presumption of actual notice
exists with respect to any person to
whom OHA sent a notice under
paragraph (a) of this section, unless the
notice is returned by the postal service
unclaimed by the addressee.
(c) OHA must post the notice in each
of the following locations:
(1) Five or more conspicuous places
in the vicinity of the designated place of
hearing;
(2) Each agency office with
jurisdiction over each parcel of trust or
restricted property in the estate; and
(3) Any other places and on other
reservations that the judge deems
appropriate.
§ 30.211 Will the notice be published in a
newspaper?
The judge may cause a notice of
hearing to be published in a newspaper
of general circulation in the vicinity of
the designated place of hearing not
fewer than 20 calendar days before the
hearing. The cost of publication may be
paid from the assets of the estate under
§ 30.144.
§ 30.212 Can I waive notice of the hearing,
the time limits, or form of notice?
(a) An interested party may waive
notice of hearing, the time limits, and
the form of notice by:
(1) Appearing at the hearing and
participating in the hearing without
objection; or
(2) Filing a written waiver with the
judge before the hearing.
(b) The requirements for notice by
posting may not be waived.
§ 30.213 What notice to a tribe is required
in a formal probate proceeding?
§ 30.210 How will I receive notice of the
formal probate proceeding?
rwilkins on PROD1PC63 with PROPOSALS
Notice
In probate cases in which the
decedent died on or after June 20, 2006:
(a) The judge must notify any tribe
with jurisdiction over the trust or
restricted land in the estate of the
pendency of a proceeding; and
(b) The certificate of mailing of a
notice of probate hearing to the tribe at
its record address will be conclusive
evidence that the tribe had notice of the
decedent’s death, of the probate
proceedings, and of the right to
purchase.
OHA will provide notice of the formal
probate proceeding by mail and by
posting. A posted and published notice
may contain notices for more than one
hearing, and need only specify the
names of the decedents, the captions of
the cases and the dates, times, places
and purposes of the hearings.
(a) OHA will send the notice to
potential heirs and devisees named in
the probate file and other interested
parties identified by OHA in the case.
The notice must:
(1) Be sent by first class mail during
the pendency of the probate proceeding
to potential heirs and devisees and other
interested parties identified by OHA in
the case;
(2) Be sent and posted at least 20
calendar days before the date of hearing,
not counting the hearing date; and
(3) Include a certificate of mailing
with the date of mailing, signed by the
person mailing the notice.
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§ 30.214 What must a notice of hearing
contain?
The notice of hearing must:
(a) State the name of the decedent and
caption of the case;
(b) Specify the date, time, and place
that the judge will hold a hearing to
determine the heirs of the decedent and,
if a will is offered for probate, to
determine the validity of the will;
(c) Name all potential heirs of the
decedent known to OHA, and, if a will
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is offered for probate, the devisees
under the will, the drafter of the will,
and the attesting witnesses to the will;
(d) Cite this part as the authority and
jurisdiction for holding the hearing;
(e) Inform all persons who claim to
have an interest in the estate of the
decedent, including persons having
claims against the estate, to be present
at the hearing on penalty of losing the
right to present evidence at the hearing;
(f) Include notice of the opportunity
to consolidate interests at the probate
hearing, including that the heirs may
propose additional interests for
consolidation, and include notice of the
opportunity for renunciation either
generally or in favor of a designated
recipient;
(g) In estates for decedents whose date
of death is on or after June 20, 2006,
include notice of the possibilities of
purchase and sale of trust or restricted
property by heirs, co-owners, a tribe, or
the Secretary; and
(h) State that the hearing may be
continued to another time and place.
Depositions, Discovery, and Prehearing
Conference
§ 30.215 How can I obtain documentation
related to the probate proceeding?
(a) An interested party may make a
written demand to produce documents
for inspection and copying or
photographing. This demand:
(1) May be made at any stage of the
proceeding before the conclusion of the
hearing;
(2) May be made upon any other party
to the proceeding or upon a custodian
of records concerning interested parties
or their trust property;
(3) Must be made in writing, and a
copy must be filed with the judge; and
(4) May demand copies of any
documents, photographs, or other
tangible things that are relevant to the
issues, not privileged, and in another
party’s or custodian’s possession,
custody, or control.
(b) Custodians of official records will
furnish and reproduce documents, or
permit their reproduction, in
accordance with the rules governing the
custody and control of the records.
(c) Documentation may be made
available to a member of the public,
subject to any law to the contrary, who
is not an interested party upon payment
of the cost of producing the documents,
as determined reasonable by the
custodians of the records.
§ 30.216 How does an interested party
obtain permission to take depositions?
(a) Depositions may be taken upon
stipulation of the parties or by order of
the judge.
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(b) When an interested party files a
written application, the judge may order
the taking of the sworn testimony of any
person by deposition upon oral
examination for the purpose of
discovery or for use as evidence at a
hearing. The application must set forth:
(1) The name and address of the
proposed witness;
(2) The reasons why the deposition
should be taken;
(3) The name and address of the
person, qualified under § 30.217(a) to
take depositions; and
(4) The proposed time and place of
the examination, which must be at least
20 days after the date of the filing of the
application.
(c) The judge may order the taking of
a deposition. The order must be served
upon all interested parties and must
state:
(1) The name of the witness;
(2) The time and place of the
examination, which must be at least 15
days after the date of the order; and
(3) The name and address of the
officer before whom the examination is
to be made.
(d) The officer and the time and place
in paragraphs (c)(2) and (c)(3) of this
section need not be the same as those
requested in the application under
paragraph (b) of this section.
rwilkins on PROD1PC63 with PROPOSALS
§ 30.217
How is a deposition taken?
(a) The witness must appear before
the judge or before an officer authorized
to administer oaths by the law of the
United States or by the law of the place
of the examination.
(b) The witness must be examined
under oath or affirmation and subject to
cross-examination. The witness’s
testimony must be recorded by the
officer or someone in the officer’s
presence.
(c) When the testimony is fully
transcribed, it must be submitted to the
witness for examination and must be
read to or by him or her, unless
examination and reading are waived.
(1) Any changes in form or substance
that the witness desires to make must be
entered upon the transcript by the
officer, with a statement of the reasons
given by the witness for making them.
(2) The transcript must then be signed
by the witness, unless the interested
parties by stipulation waive the signing,
or the witness is unavailable or refuses
to sign.
(3) If the transcript is not signed by
the witness, the officer must sign it and
state on the record the fact of the
waiver, the unavailability of the
witness, or the refusal to sign together
with the reason given, if any. The
transcript may then be used as if it were
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signed, unless the judge determines that
the reason given for refusal to sign
requires rejection of the transcript in
whole or in part.
(d) The officer must certify on the
transcript that the witness was duly
sworn by the officer and that the
transcript is a true record of the
witness’s testimony. The officer must
then hand deliver or mail the original
and two copies of the transcript to the
judge.
§ 30.218 How may the transcript of a
deposition be used?
A transcript of a deposition ordered
and taken in accordance with the
provisions of this part may be offered by
any party or the judge in a hearing if the
judge finds that the evidence is
otherwise admissible and:
(a) The witness is unavailable; or
(b) The interest of fairness is served
by allowing the transcript to be used.
§ 30.219 Who pays for the costs of taking
a deposition?
The party who requests the taking of
a deposition must make arrangements
for payment of any costs incurred. The
judge may assign the costs in the order.
§ 30.220 How does an interested party
obtain written interrogatories and
admission of facts and documents?
(a) An interested party may serve
upon any other interested party written
interrogatories and requests for
admission of facts and documents. The
interested party may do this only if:
(1) The interrogatories and requests
are served in sufficient time to permit
answers to be filed before the hearing,
or as otherwise ordered by the judge;
and
(2) Copies of the interrogatories and
requests are filed with the judge.
(b) A party receiving interrogatories or
requests served under paragraph (a) of
this section must:
(1) Serve answers upon the requesting
party within 30 days from the date of
service of the interrogatories or requests,
or within another deadline agreed upon
by the parties or prescribed by the
judge; and
(2) File a copy of the answers with the
judge.
§ 30.221 May the judge limit the time,
place, and scope of discovery?
Yes. The judge may limit the time,
place, and scope of discovery:
(a) Upon timely motion by any
interested party, if that party also gives
proper notice to all interested parties
and shows good cause; or
(b) When the judge determines that
limits are necessary to prevent delay of
the proceeding or prevent undue
hardship to a party or witness.
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§ 30.222 What happens if a party fails to
comply with discovery?
(a) If a party fails without good cause
to comply with discovery under this
part or any order issued, the judge may:
(1) Draw inferences with respect to
the discovery request adverse to the
claims of the party who has failed to
comply with discovery or the order, or
(2) Make any other ruling as the judge
determines just and proper.
(b) Failure to comply with discovery
includes failure to:
(1) Comply with a request for the
production of a document;
(2) Appear for examination;
(3) Respond to interrogatories or
requests for admissions; or
(4) Comply with an order of the judge.
§ 30.223
What is a prehearing conference?
Before a hearing, the judge may order
the parties to appear for a conference to:
(a) Simplify or clarify the issues;
(b) Obtain stipulations, admissions,
agreements on documents,
understandings on matters already of
record, or similar agreements that will
avoid unnecessary proof;
(c) Limit the number of expert or
other witnesses to avoid excessively
cumulative evidence;
(d) Facilitate agreements disposing of
all or any of the issues in dispute; or
(e) Resolve such other matters as may
simplify and shorten the hearing.
Hearings
§ 30.224 Can a judge compel a witness to
appear and testify at a hearing?
(a) The judge can issue a subpoena for
a witness to appear and testify at a
hearing and to bring documents or other
material to the hearing.
(1) An interested party may request
that the judge issue a subpoena for the
appearance of a witness to testify. The
request must state the name, address,
and telephone number or other means of
contacting the witness, and the reason
for the request. The request must be
timely. The requesting party must mail
the request to all other interested parties
and to the witness at the time of filing.
(2) The request must specify the
documents or other material sought for
production under the subpoena.
(3) The judge will grant or deny the
motion or request in writing and mail
copies of the order to all the interested
parties.
(4) A person subpoenaed may seek to
avoid a subpoena by filing a motion to
quash with the judge and sending
copies to the interested parties.
(b) Anyone whose legal residence is
more than 100 miles from the hearing
location may ask the judge to excuse his
or her attendance under subpoena.
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(1) If the judge denies the request, the
judge may assign costs for the
transportation of the witness to the
place of hearing or deposition.
(2) The judge will inform the
interested parties of the request and the
decision in writing in a timely manner.
(c) A judge may assign the costs of
requiring a non-party to appear at a
hearing or a deposition.
(d) If a subpoenaed person fails or
refuses to appear at a hearing or to
testify, the judge may file a petition in
United States District Court for issuance
of an order requiring the subpoenaed
person to appear and testify.
(e) The judge may seek by petition to
the appropriate United States District
Court the invocation of powers of
contempt when necessary and
appropriate to ensure due process and
orderly prosecution of probate cases
under the law.
§ 30.225
public?
Are probate hearings open to the
The probate hearings conducted
under this part are open to public
attendance.
(a) In the exercise of discretion, the
judge may close the hearing for the
testimony of a party or other witness
and exclude all persons but the
interested parties.
(b) Except as the judge finds necessary
to comply with due process or for other
good cause shown, and subject to
transfer to the IBIA on appeal, the judge
may seal the record or transcript of
testimony taken during a closed hearing.
§ 30.226 Must testimony in a probate
proceeding be under oath or affirmation?
Yes. Testimony in a probate
proceeding must be under oath or
affirmation.
(a) The judge must make a verbatim
recording of all formal probate hearings.
The judge will order the transcription of
recordings of hearings as the judge
determines necessary.
(b) If the judge orders the
transcription of a hearing, the judge will
make the transcript available to
interested parties.
rwilkins on PROD1PC63 with PROPOSALS
§ 30.228 What evidence is admissible at a
probate hearing?
(a) A judge conducting probate
proceedings under this part may admit
any written, oral, documentary, or
demonstrative evidence that is:
(1) Relevant, reliable, and probate;
and
(2) Not privileged under Federal law,
or unduly repetitious or cumulative.
(b) The judge may exclude evidence if
its probative value is substantially
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§ 30.229 Is testimony required for selfproved wills, codicils, or revocations?
The judge may approve a self-proved
will, codicil, or revocation, if
uncontested, and order distribution
with or without the testimony of any
attesting witness.
§ 30.230 What if approval of the selfproved will, codicil, or revocation is
contested?
§ 30.227 Is a record made of formal
probate hearings?
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outweighed by the risk of undue
confusion of the issues or delay.
(c) Hearsay evidence is admissible.
The judge may consider the fact that
evidence is hearsay when determining
its probative value.
(d) A judge may admit a copy of a
document into evidence or may require
the admission of the original document.
After examining the original document,
the judge may substitute a copy of the
original document and return the
original.
(e) The Federal Rules of Evidence do
not directly apply to the hearing, but
may be used as guidance by the judge
and the parties in interpreting and
applying the provisions of this section.
(f) The judge may take official notice
of any public record of the Department
and of any matter of which federal
courts may take judicial notice.
(g) The judge determines the weight
given to any evidence admitted.
(h) Any party objecting to the
admission or exclusion of evidence
shall concisely state the grounds. A
ruling on every objection must appear in
the record.
(i) There is no privilege under this
part as to any communication between
a decedent and any attorney advising
the decedent as to any matter relevant
to an issue between parties, all of whom
claim through that decedent.
(a) If the approval of a will, codicil,
or revocation is contested, the attesting
witnesses who are in the reasonable
vicinity of the place of hearing and who
are of sound mind must be produced
and examined.
(b) If none of the attesting witnesses
resides near the place of hearing at the
time appointed for proving the will, the
judge may:
(1) Order the deposition of any
available attesting witnesses at a
location reasonably near the residence
of the witness;
(2) Admit the testimony of other
witnesses to prove the testamentary
capacity of the testator and the
execution of the will; and
(3) As evidence of the execution,
admit proof of the handwriting of the
testator and of the attesting witnesses, or
of any of them.
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§ 30.231
Who pays witnesses’ costs?
(a) Interested parties who desire a
witness to testify at a hearing must make
their own financial and other
arrangements for the witness.
(b) The judge may order payment of
per diem, mileage, and subsistence at a
rate not to exceed that allowed to
witnesses called in the U.S. District
Courts.
(c) In the order for payment, the judge
must specify whether such costs are to
be allocated and charged against the
interest of the party calling the witness
or against the estate.
(d) Costs of administration allowed
against the estate under paragraphs (b)
or (c) of this section will have a priority
for payment greater than that for any
creditor claims allowed.
§ 30.232 May a judge schedule a
supplemental hearing?
Yes. A judge may schedule a
supplemental hearing if he or she deems
it necessary.
§ 30.233 What will the official record of the
probate case contain?
After the completion of the hearing,
the judge will compile the official
record. The official record of the probate
case will contain:
(a) A copy of the posted public notice
of hearing showing the posting
certifications;
(b) A copy of each notice served on
interested parties with proof of mailing;
(c) The record of the evidence
received at the hearing, including any
transcript made of the testimony;
(d) Claims filed against the estate;
(e) Any wills, codicils, and
revocations;
(f) Inventories and valuations of the
estate;
(g) Pleadings and briefs filed;
(h) Special or interim orders;
(i) Copies of all proposed or accepted
settlement agreements, consolidation
agreements, and renunciations and
acceptances of renounced property;
(j) In the case of sale of estate property
at probate, copies of notices of sale,
appraisals and objections to appraisals,
requests for purchases, all bids received,
and proof of payment;
(k) The decision, order, and the
notices thereof; and
(l) Any other documents or items
deemed material by the judge.
§ 30.234 What will the judge do with the
original record?
(a) The judge must send the original
record to the designated LTRO in
accordance with 25 CFR part 150.
(b) The judge must send a copy of:
(1) The order to the agency originating
the probate, and
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expiration of the 30 days allowed for the
filing of a petition for rehearing by
aggrieved parties.
(2) The order and inventory to other
affected agencies.
§ 30.235 What happens if a hearing
transcript has not been prepared?
When a hearing transcript has not
been prepared, the recording of the
hearing must be retained in the office of
the judge issuing the decision until the
time allowed for rehearing or appeal has
expired, and the original record
returned to the LTRO must contain a
statement indicating that no transcript
was prepared.
Decisions in Formal Proceedings
§ 30.236 What will the judge’s decision in
a formal probate proceeding contain?
The judge must decide the issues of
fact and law involved in any
proceedings and issue a written
decision.
(a) In all cases, the decision will:
(1) List the names of each heir or
devisee with the identifying numbers as
assigned by BIA, birth dates, and
relationship to the decedent;
(2) Describe the distribution of shares
of each of the heirs, in addition to the
names of the recipients of renounced or
disclaimed interests;
(3) Provide the information necessary
to identify the persons and property
interests involved in any settlement or
consolidation agreement, renunciations
of interest, and purchases at probate;
(4) Allow or disallow claims against
the estate in accordance with this part,
and order the amount of payment for all
approved claims;
(5) Approve or disapprove any
renunciation, settlement agreement,
consolidation agreement, or purchase at
probate;
(6) State whether the heirs or devisees
are Indian, non-Indian, or eligible to
hold property in trust status; and
(7) Include a determination of any
rights of dower, curtesy, or homestead
that may constitute a burden upon the
interest of the heirs.
(b) In a testate case, the decision will
also:
(1) Approve or disapprove a will;
(2) Interpret provisions of the
approved will; and
(3) Describe the share each devisee is
to receive, subject to any encumbrances.
rwilkins on PROD1PC63 with PROPOSALS
§ 30.237 What notice of the decision will
the judge provide?
When the judge issues a decision, the
judge must issue a notice of the decision
to all parties who have or claim any
interest in the estate, and mail or deliver
a copy of the notice, together with a
copy of the decision, to each affected
agency and to each interested party. The
decision will not become final until the
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§ 30.238 May I file a petition for rehearing
if I disagree with the judge’s decision in the
formal probate hearing?
(a) Any interested party may file with
the judge a written petition for rehearing
within 30 days after the date on which
notice of the decision is mailed.
(b) If the petition is based on newlydiscovered evidence, it must:
(1) Be accompanied by affidavits or
declarations of witnesses stating fully
the content of the new evidence; and
(2) State the reasons for the failure to
discover and present that evidence at
the hearings held before the issuance of
the decision.
(c) A petition for rehearing must state
specifically and concisely the grounds
on which it is based.
(d) The judge must forward a copy of
the petition for rehearing to the affected
agencies.
§ 30.239 Does any distribution of the
estate occur while a petition for rehearing
is pending?
The agencies must not initiate
payment of claims or distribute any
portion of the estate while the petition
is pending, unless otherwise directed by
the judge.
§ 30.240 How will the judge address a
petition for rehearing?
(a) If proper grounds are not shown,
or if the petition is not timely filed, the
judge will issue an order denying the
petition for rehearing and setting forth
the reasons and furnish copies of the
order to the petitioner, the agencies, and
the interested parties.
(b) If the petition appears to show
merit, the judge must:
(1) Cause copies of the petition and
supporting papers to be served on those
persons whose interest in the estate
might be adversely affected by the
granting of the petition;
(2) Allow all persons served a
reasonable, specified time in which to
submit answers or legal briefs in
response to the petition; and
(3) Consider, with or without a
hearing, the issues raised in the petition.
(c) The judge may affirm, modify, or
vacate the former decision.
(d) Upon entry of a final order, the
judge must distribute the order as
provided in this part.
§ 30.241 Can I submit another petition for
rehearing?
No. Successive petitions for rehearing
are not permitted. The jurisdiction of
the judge terminates upon the issuance
of a decision finally disposing of a
petition for rehearing, except for:
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(a) The issuance of necessary orders
nunc pro tunc to correct clerical errors
in the decision; and
(b) The reopening of a case under this
part.
§ 30.242 When does the judge’s decision
on a petition for rehearing become final?
The decision will become final upon
the expiration of the 30 days allowed for
the filing of a notice of appeal, as
provided in this part.
§ 30.243 Can a closed probate case be
reopened?
(a) A person claiming an interest in an
estate may file a petition for reopening
a closed probate case with the OHA
office that issued the original decision.
(1) A case may be reopened based
upon lack of notice or to prevent
manifest injustice only.
(2) All grounds for the reopening must
be set forth fully. If based on alleged
errors of fact, all such allegations must
be under oath and supported by
affidavits.
(3) If the petition for reopening is
based upon lack of notice of the original
proceedings, the petition must be filed
within 1 year from the date the
petitioner discovered the error.
(b) A judge may reopen a case on the
judge’s own initiative.
§ 30.244 How will the judge address my
petition for reopening?
(a) If the judge finds that proper
grounds are not shown, the judge will
issue an order denying the petition and
giving the reasons for the denial. Copies
of the judge’s decision must be mailed
to the petitioner, the agencies, and those
persons whose rights would be affected.
(b) If the petition appears to show
merit, the judge must cause copies of
the petition and all papers filed by the
petitioner to be served on those persons
whose interest in the estate could be
affected by the granting of the petition.
These persons may respond to the
petition by filing answers, crosspetitions, or briefs. The filings must be
made within the time periods set by the
judge.
§ 30.245 What happens if the judge
reopens the case?
Upon reopening, the judge may
affirm, modify, or vacate the former
decision.
(a) Copies of the judge’s decision on
reopening must be mailed to the
petitioner and to all persons who
received copies of the petition.
(b) By order directed to the agency,
the judge may suspend further
distribution of the estate or income
during the reopening proceedings.
(c) The judge must file the record
made on a reopening petition with the
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§ 30.246 When will the decision on
reopening become final?
Subpart K—Miscellaneous Provisions
The decision on reopening will
become final upon the expiration of the
30 days allowed for the filing of a notice
of appeal, as provided in this part.
§ 30.250 When does the anti-lapse
provision apply?
If . . .
And . . .
Then . . .
an Indian testator devises trust property to any
of his or her grandparents or to the lineal descendant of a grandparent.
the devisee dies before the testator, leaving
lineal descendants.
the lineal descendants take the right, title, or
interest so given by the will per stirpes
(b) For purposes of this section,
relationship by adoption is equivalent to
relationship by blood.
(2) Petitions for allowance of fees
must be filed before the close of the last
hearing.
(b) Nothing in this section prevents an
attorney from petitioning for additional
fees to be considered at the disposition
of a petition for rehearing and again
after an appeal on the merits. An order
allowing attorney fees is subject to a
petition for rehearing and to an appeal.
property died intestate and without
heirs, and the judge will determine
whether 25 U.S.C. 2206(a) applies.
(b) If 25 U.S.C. 2206(a) does not
apply, the judge will order the escheat
of the property in accordance with:
(1) 25 U.S.C. 373a if the trust or
restricted property is not on the public
domain; or
(2) 25 U.S.C. 373b if the trust or
restricted property is on the public
domain.
designated LTRO and must furnish a
duplicate record to the affected
agencies.
§ 30.251 What happens if an heir or
devisee knowingly participates in the willful
and unlawful killing of the decedent?
Any person who knowingly
participates, either as a principal or as
an accessory before the fact, in the
willful and unlawful killing of the
decedent, may not take, directly or
indirectly, any inheritance or devise
under the decedent’s will. This person
will be treated as if he or she had
predeceased the decedent.
§ 30.252 Can a judge allow fees for
attorneys representing interested parties?
(a) Except for attorneys representing
creditors, the judge may allow fees for
attorneys representing interested
parties.
(1) At the discretion of the judge,
these fees may be charged against the
interests of the party represented or as
a cost of administration.
§ 30.253 How must minors or other legal
incompetents be represented?
Minors and other legal incompetents
who are interested parties must be
represented at all hearings by legally
appointed guardians, or by guardians ad
litem appointed by the judge. In
appropriate cases, the judge may order
the payment of fees to the guardian ad
litem from the assets of the estate.
§ 30.254 What happens when a person
dies without a valid will and has no heirs?
(a) The judge will determine whether
a person with trust or restricted
(a) The following table illustrates how
the anti-lapse provision applies.
Subpart L—Tribal Purchase of
Interests Under Special Statutes
§ 30.260 What land is subject to a tribal
purchase option at probate?
Sections 30.260 through 30.274 apply
to formal proceedings in Indian probate
that relate to the tribal purchase of a
decedent’s interests in the trust and
restricted land shown in the following
table.
Location of trust or restricted land
Legislation governing purchase
(a) Yakima Reservation or within the area ceded by the Treaty of June
9, 1855 (12 Stat. 1951).
The Act of December 31, 1970 (Pub. L. 91–627; 84 Stat. 1874; 25
U.S.C. 607 (1976)), amending section 7 of the Act of August 9, 1946
(60 Stat. 968).
The Act of August 10, 1972 (Pub. L. 92–377; 86 Stat. 530).
(b) Warm Springs Reservation or within the area ceded by the Treaty
of June 25, 1855 (12 Stat. 37).
(c) Nez Perce Indian Reservation or within the area ceded by the Treaty of June 11, 1855 (12 Stat. 957).
(d) Devils Lake Sioux Reservation for the Spirit Lake Sioux Tribe .........
(e) Standing Rock Sioux Reservation ......................................................
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§ 30.261 What determinations with regard
to a tribal purchase option will a judge
make?
(a) In the exercise of probate
authority, a judge will determine:
(1) The entitlement of a tribe to
purchase a decedent’s interests in trust
or restricted land under the statutes;
(2) The entitlement of a surviving
spouse to reserve a life estate in one-half
of the surviving spouse’s interests that
have been purchased by a tribe; and
(3) The fair market value of such
interests, as determined by an appraisal,
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The Act of September 29, 1972 (Pub. L. 92–443; 86 Stat. 744).
The Act of January 12, 1983 (Pub. L. 97–459, Section 108, 96 Stat.
2515).
The Act of June 17, 1980 (Pub. L. 96–276, section 4(b), 94 Stat. 537).
including the value of any life estate
reserved by a surviving spouse.
(b) In making a determination under
paragraph (a)(1) of this section, the
following issues will be determined by
the official tribal roll, which is binding
upon the judge:
(1) Enrollment or refusal of the tribe
to enroll a specific individual; and
(2) Specification of blood quantum,
where pertinent.
(c) For good cause shown, the judge
may stay the probate proceeding to
permit an aggrieved party to pursue an
enrollment application, grievance, or
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appeal through the established
procedures applicable to the tribe.
§ 30.262 When will BIA furnish a valuation
of a decedent’s interests?
In all probates, at the earliest possible
stage of the proceeding before issuance
of a probate decision, BIA must furnish
a valuation of the decedent’s interests
when the record reveals to the agency:
(a) That the decedent owned interests
in land located on one or more of the
reservations designated in § 30.260; and
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(b) That one or more of the probable
heirs or devisees who may receive the
interests either:
(1) Is not enrolled in the tribe of the
reservation where the land is located; or
(2) Does not have the required blood
quantum in the tribe to hold the
interests against a claim made by the
tribe.
(c) The valuation must be made on the
basis of the fair market value of the
property, including fixed
improvements, as of the date of
decedent’s death.
(d) If there is a surviving spouse
whose interests may be subject to the
tribal purchase option, the valuation
must include the value of a life estate
based on the life of the surviving spouse
in one-half of such interests.
(e) BIA must include the valuation
report in the probate package submitted
to OHA. Interested parties may examine
and copy, at their expense, the valuation
report at the agency or the office of the
judge.
§ 30.263
When is a final decision issued?
(a) When a decedent is shown to have
owned land interests in any one or more
of the reservations designated in
§ 30.260, the probate proceeding relative
to the determination of heirs, approval
or disapproval of a will, and the claims
of creditors will first be concluded as
final for the Department in accordance
with this part. This decision is referred
to in this section as the ‘‘probate
decision.’’
(b) At the formal probate hearing, a
finding must be made on the record
showing those interests in land, if any,
that are subject to the tribal purchase
option.
(1) The finding must be included in
the probate decision setting forth the
apparent rights of the tribe as against
affected heirs or devisees and the right
of a surviving spouse whose interests
are subject to the tribal purchase option
to reserve a life estate in one-half of
such interests.
(2) If the finding is that there are no
interests subject to the tribal purchase
option, the decision must so state.
(3) A copy of the probate decision, to
which must be attached a copy of the
valuation report, must be distributed to
all interested parties in accordance with
§ 30.237.
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§ 30.264 When may a tribe exercise its
statutory option to purchase?
(a) A tribe may purchase all or a part
of the available interests specified in the
probate decision within 60 days of the
probate decision unless a petition for
rehearing has been filed under § 30.238
or a demand for hearing has been filed
under § 30.268.
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(b) If a petition for rehearing or a
demand for hearing has been filed, a
tribe may purchase all or a part of the
available interests specified in the
probate decision within 20 days from
the date of the decision on rehearing or
hearing, whichever is applicable. A tribe
may not, however, claim an interest less
than the decedent’s total interest in any
one individual tract.
(c) Upon failure to timely file a notice
of purchase, the right to distribution of
all unclaimed interests will accrue to
the heirs or devisees.
§ 30.265 How does a tribe exercise its
statutory option to purchase?
45243
(2) Within 30 days from the date of
the decision on rehearing; or
(3) Within 20 days from the date the
tribe exercises its option to purchase
available interests.
(b) The demand for hearing must:
(1) Include a certification that copies
of the demand have been mailed on the
same date to the agency and to each
interested party; and
(2) State specifically and concisely the
grounds upon which it is based.
§ 30.269 What notice of the hearing will the
judge provide?
To exercise its option to purchase, the
tribe must file with the agency a written
notice of purchase and resolution or
other authorizing document, together
with the tribe’s certification that copies
have been mailed on the same date to
the judge and to the affected heirs or
devisees.
The judge must, upon receiving a
demand for hearing:
(a) Set a time and place for the
hearing after expiration of the 30-day
period fixed for the filing of the demand
for hearing as provided in § 30.268; and
(b) Mail a notice of the hearing to all
interested parties not less than 20 days
in advance of the hearing.
§ 30.266 May a surviving spouse reserve a
life estate when a tribe exercises its
statutory option to purchase?
§ 30.270 How will the hearing be
conducted?
Yes. When the heir or devisee whose
interests are subject to the tribal
purchase option is a surviving spouse,
the spouse may reserve a life estate in
one-half of the interests.
(a) To reserve a life estate, the spouse
must, within 30 days after the tribe has
exercised its option to purchase the
interest, file with the agency both:
(1) A written notice to reserve a life
estate; and
(2) A certification that copies of the
notice have been mailed on the same
date to the judge and the tribe.
(b) Failure to file the notice on time,
as required by paragraph (a)(1) of this
section, constitutes a waiver of the
option to reserve a life estate.
(a) At the hearing, each party
challenging the tribe’s claim to purchase
the interests in question or the valuation
of the interests as set forth in the
valuation report will have the burden of
proving his or her position.
(b) Upon conclusion of the hearing,
the judge will issue a decision that
determines all of the issues including,
but not limited to:
(1) The fair market value of the
interests purchased by the tribe; and
(2) Any adjustment of the fair market
value made necessary by the surviving
spouse’s decision to reserve a life estate
in one-half of the interests.
(c) The decision must specify a right
of appeal to the Board of Indian Appeals
within 30 days from the date of the
decision in accordance with §§ 4.320
through 4.326 of this subtitle.
(d) The judge must lodge the complete
record relating to the demand for
hearing with the LTRO as provided in
§ 30.234, furnish a duplicate record
thereof to the agency, and mail a notice
of such action together with a copy of
the decision to each interested party.
§ 30.267 What if I disagree with the
probate decision regarding tribal purchase
option?
Any interested party aggrieved by the
probate decision may, within 30 days
from the date of the probate decision,
file with the judge a written petition for
rehearing in accordance with this part.
§ 30.268 May I demand a hearing regarding
the tribal purchase option decision?
Yes. Any interested party aggrieved
by the exercise of the tribal purchase
option to purchase the interests in
question or the valuation of the interests
as set forth in the valuation report may
file with the judge a written demand for
hearing.
(a) The demand for hearing must be
filed by whichever of the following
deadlines is applicable:
(1) Within 30 days from the date of
the probate decision;
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§ 30.271 How must the tribe pay for the
interests it purchases?
(a) A tribe must pay the full fair
market value of the interests purchased,
as set forth in the valuation report or as
determined after hearing in accordance
with § 30.268, whichever is applicable.
(b) Payment must be made within 2
years from the date of decedent’s death
or within 1 year from the date of notice
of purchase, whichever is later.
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§ 30.272 What are the Superintendent’s
duties upon payment by the tribe?
Upon payment by the tribe of the
interests purchased, the Superintendent
must:
(a) Issue a certificate to the judge that
payment has been made; and
(b) File with the certificate all
supporting documents required by the
judge.
(a) Issue an order that the United
States holds title to the interests in trust
for the tribe;
(b) File the complete record,
including the decision, with the LTRO
as provided in § 30.234;
(c) Furnish a duplicate copy of the
record to the agency; and
(d) Mail a notice of the action together
with a copy of the decision to each
interested party.
After receiving the certificate and
supporting documents, the judge will:
rwilkins on PROD1PC63 with PROPOSALS
§ 30.273 What action will the judge take to
record title?
§ 30.274 What happens to income from
land interests during pendency of the
probate?
During the pendency of the probate
and up to the date of transfer of title to
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the United States in trust for the tribe in
accordance with § 30.273, all income
received or accrued from the land
interests purchased by the tribe will be
credited to the estate and paid to the
heirs.
Cross-reference: See 25 CFR part 2 for
procedures for appeals to Regional Directors
and to the Director of the Bureau of Indian
Affairs.
Dated: July 26, 2006.
James E. Cason,
Associate Deputy Secretary, Department of
the Interior.
[FR Doc. 06–6622 Filed 8–7–06; 8:45 am]
BILLING CODE 4310–W7–P
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Agencies
[Federal Register Volume 71, Number 152 (Tuesday, August 8, 2006)]
[Proposed Rules]
[Pages 45174-45244]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-6622]
[[Page 45173]]
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Part IV
Department of the Interior
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Bureau of Indian Affairs
25 CFR Parts 15, 18, 150, et al.
43 CFR Parts 4 and 30
Indian Trust Management Reform; Proposed Rule
Federal Register / Vol. 71 , No. 152 / Tuesday, August 8, 2006 /
Proposed Rules
[[Page 45174]]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Parts 15, 18, 150, 152, and 179
Office of the Secretary
43 CFR Parts 4 and 30
RIN 1076-AE59
Indian Trust Management Reform
AGENCY: Bureau of Indian Affairs, Office of the Secretary, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Bureau of Indian Affairs (BIA) and the Office of the
Secretary propose to amend several of their regulations related to
Indian trust management to further fulfill the Secretary's fiduciary
responsibilities to federally recognized tribes and individual Indians
and to meet the Indian trust management policies articulated by
Congress in the Indian Land Consolidation Act (ILCA), as amended by the
American Indian Probate Reform Act of 2004 (AIPRA). These amendments
address Indian trust management issues in the areas of probate, probate
hearings and appeals, tribal probate codes, life estates and future
interests in Indian land, the Indian land title of record; and
conveyances of trust or restricted land. There is also an ``Application
for Consolidation by Sale'' form that is associated with one of these
amendments.
DATES: Please submit your comments by October 10, 2006.
ADDRESSES: You may submit comments, identified by the number 1076-AE59,
by any of the following methods:
--Federal rulemaking portal: https://www.regulations.gov. Follow the
instructions for submitting comments.
--Web site at https://www.doitrustregs.com.
--E-mail: Michele--F--Singer@ios.doi.gov. Include the number 1076-AE59
in the subject line of the message.
--Fax: (202) 208-5320. Include the number 1076-AE59 in the subject line
of the message.
--Mail: U.S. Department of the Interior, 1849 C Street, NW., Mail Stop
4141, Washington, DC 20240
--Hand delivery: Michele Singer, U.S. Department of the Interior, 1849
C Street, NW., Washington, DC 20240.
Comments on the information collection burdens, including comments
on or requests for copies of the ``Application for Consolidation by
Sale'' form, are separate from those on the substance of the rule. Send
comments on the information collection burdens to: Interior Desk
Officer 1076-AE59, Office of Management and Budget, e-mail: oira_
docket@omb.eop.gov; or 202/395-6566 (fax). Please also send a copy of
your comments to BIA at the location specified under the heading
ADDRESSES.
FOR FURTHER INFORMATION CONTACT: Michele Singer, Counselor to the
Assistant Secretary--Indian Affairs, Department of the Interior, Bureau
of Indian Affairs, 1849 C Street NW., Mail Stop 4141, Washington, DC
20240, telephone (202) 273-4680.
SUPPLEMENTARY INFORMATION:
I. Statutory Authority
II. Background
A. History of the Rule
B. The Need for this Proposed Rulemaking
C. Development of Proposed Reguatory Language
D. Status of Other Indian Trust Management Reform Regulations
III. Overview of Proposed Rule
IV. Part-by-Part Analysis
A. 25 CFR Part 15
B. 25 CFR Part 18
C. 25 CFR Part 150
D. 25 CFR Part 152
E. 25 CFR Part 179
F. 43 CFR Part 4
G. 43 CFR Part 30
V. Public Comments
A. Comments Received Prior to This Publication
B. Directions for Submitting Comments
VI. Procedural Requirements
A. Regulatory Planning and Review (Executive Order 12866)
B. Regulatory Flexibility Act
C. Small Business Regulatory Enforcement and Fairness Act
D. Unfunded Mandates Reform Act of 1995
E. Governmental Actions and Interference with Constitutionally
Protected Property Rights (Executive Order 12630)
F. Federalism (Executive Order 13132)
G. Civil Justice Reform (Executive Order 12988)
H. Paperwork Reduction Act
I. National Environmental Policy Act (NEPA)
J. Government-to-Government Relationships with Tribes (Executive
Order 13175)
K. Energy Effects (Executive Order 13211)
I. Statutory Authority
Regulatory amendments to these parts are proposed under the
general authority of the Trust Fund Management Reform Act of 1994,
25 U.S.C. 4021 et seq., and the Indian Land Consolidation Act of
2000 (ILCA) as amended by the American Indian Probate Reform Act of
2004 (AIPRA), 25 U.S.C. 2201 et seq. The following table provides
additional statutory authority specific to each CFR part.
25 CFR part 15.................... 5 U.S.C. 301; 25 U.S.C. 2, 9, 372-
74, 410; 44 U.S.C. 3101 et seq.
25 CFR part 18.................... 5 U.S.C. 301; 25 U.S.C. 2, 9, 372-
NEW-Tribal Probate Codes.......... 74, 410; 44 U.S.C. 3101 et seq.;
Pub. L. 108-374 (American Indian
Probate Reform Act of 2004).
25 CFR part 150................... Act of June 30, 1834 (4 Stat. 738;
25 U.S.C. 9). Act of July 26, 1892
(27 Stat. 272; 25 U.S.C. 5).
Reorganization Plan No. 3 of 1950
approved June 20, 1949 (64 Stat.
1262). (Act of April 26, 1906 (34
Stat. 137); Act of May 27, 1908 (35
Stat. 312); Act of August 1, 1914
(38 Stat. 582, 598) deals
specifically with land records of
the Five Civilized Tribes. Act of
February 14, 1920 (41 Stat. 415)
amended March 1, 1933 (47 Stat.
1417; 25 U.S.C. 413); 5 U.S.C.
552a; and 31 U.S.C. 9701.
25 CFR part 152................... R.S. 161; 5 U.S.C. 301. Interpret or
apply sec. 7, 32 Stat. 275, 34
Stat. 1018, sec. 1, 35 Stat. 444,
sec. 1 and 2, 36 Stat. 855, as
amended, 856, as amended, sec. 17,
39 Stat. 127, 40 Stat. 579, 62
Stat. 236, sec. 2, 40 Stat. 606, 68
Stat. 358, 69 Stat. 666: 25 U.S.C.
378, 379, 405, 404, 372, 373, 483,
355, unless otherwise noted.
25 CFR part 179................... 86 Stat. 530; 86 Stat. 744; 94 Stat.
537; 96 Stat. 2515; 25 U.S.C. 2, 9,
372, 373, 487, 607, and 2201-11;
Pub. L. 108-374 (American Indian
Probate Reform Act of 2004).
43 CFR part 4..................... 5 U.S.C. 301; 43 U.S.C. 1201.
43 CFR part 30.................... 5 U.S.C. 301; 43 U.S.C. 1201.
NEW--Probate Hearing Procedures...
[[Page 45175]]
II. Background
This rulemaking is a result of a collaborative, multi-year
undertaking to identify a comprehensive strategy for improving Indian
trust management. The Department of the Interior manages Indian trust
assets in accordance with its fiduciary trust relationship with tribes
and individual Indians. The term ``tribes'' is used in this preamble to
refer to Federally recognized tribes. The purpose of today's proposed
rulemaking is to allow the Department of the Interior to better meet
its fiduciary trust responsibilities and to carry out the policies
established by Congress to strengthen tribal sovereignty. This
rulemaking will provide the Department with the tools to more
effectively and consistently manage trust assets and better serve its
trust beneficiaries (i.e., Indian tribes and individual Indians).
A. History of the Rule
The Department of the Interior has been examining ways to better
meet its fiduciary trust responsibilities since 1994, when Congress
passed the Trust Fund Management Reform Act. Throughout this time, the
Department has sought the participation and input of tribal leaders and
individual Indian beneficiaries to identify ways in which the
Department can better serve its beneficiaries.
In July 2001, the Secretary of the Interior (Secretary) issued
Secretarial Orders 3231 and 3232. These orders created the Office of
Historical Trust Accounting (OHTA) to perform historical accounting of
trust assets and created a temporary Office of the Indian Trust
Transition (OITT), which was charged with reorganizing the agency to
better meet beneficiaries'' needs. These Secretarial Orders also stated
the Secretary's policy to take a more coordinated approach to ensure
the overall success of trust reform.
In accordance with this policy, the Department reevaluated its
approach to trust reform and, in January 2002, embarked on an
examination and reengineering of its Indian trust management processes.
This effort differed from prior trust reform efforts because it took a
comprehensive approach to trust reform, linking individual trust reform
issues to an overall strategy. To ensure that the strategy fully
considered tribal concerns, the Department assembled a Joint Task Force
of tribal representatives and representatives from the Department.
From members of this Joint Task Force, a subcommittee of both
tribal representatives and Department representatives was formed. The
subcommittee met regularly to review the ``As-Is'' processes of the way
major trust functions were performed at that time. From this ``As-Is''
model, the subcommittee identified business goals and objectives the
Department should meet in fulfilling its trust responsibilities and
providing improved services to trust beneficiaries. It then developed
the overall strategy to meet those goals and objectives, documented as
the Comprehensive Trust Management (CTM) plan.
The CTM laid the groundwork for trust reform by providing strategic
direction for development of the ``To-Be'' model, known as the
Fiduciary Trust Model (FTM). The FTM redesigns trust processes into
more efficient, consistent, integrated, and fiscally responsible
business processes. In developing the FTM, the team incorporated years
of Departmental consultation with tribes. The Department adopted the
FTM in December 2004 to guide trust reform. Together with Indian
affairs policies, the FTM forms the basis of today's rulemaking.
B. The Need for This Proposed Rulemaking
Since adopting the FTM, the Department has formed an FTM
Implementation Team with tribal representatives. The FTM Implementation
Team is leading internal organizational changes for improving
performance and accountability in management of the trust. At the
beginning of the reengineering process, the Joint Task Force had
anticipated that regulatory changes would be necessary to fully
implement trust reform. The Team has since determined, and the
Secretary has confirmed, that certain regulatory changes are indeed
needed to enable the Department to fully implement the FTM. Today's
proposed rule includes many of these necessary regulatory changes.
Additionally, Congress enacted the American Indian Probate Reform
Act of 2004. AIPRA amends ILCA to better meet the trust reform goals
for land consolidation articulated in ILCA. Regulatory changes
authorized by AIPRA are included in this proposed rule.
C. Development of Proposed Regulatory Language
This proposed rulemaking encompasses tribal and Departmental
representatives' efforts on the Joint Task Force, as well as the
efforts of tribal representatives who have provided comments throughout
the trust reform process. These efforts guided in-house teams in
drafting the specific regulatory language included in this proposed
rulemaking. The in-house teams consisted of Federal personnel from
Department headquarters and the field, and included program officers
and Department attorneys possessing extensive expertise in probate,
land titles and records, acquisition and conveyance, leasing and
grazing, and administrative appeals. On December 27, 2005, the
Department shared advance copies of the proposed regulatory language
(identified as ``preliminary drafts'' throughout this preamble) with
leaders of each Federally recognized tribal government, as well as
additional contacts in Indian country, for their input and
recommendations. The Department has also presented the preliminary
drafts and obtained the input of tribes at two formal consultation
meetings: one in Albuquerque, New Mexico on February 14-15, 2006, and
one in Portland, Oregon on March 29, 2006. Comments received during
these consultations and in the time leading up to this publication have
identified several issues that the Department considered in revising
the preliminary drafts for publication as a proposed rule. In
accordance with the government-to-government relationship with tribes,
formal consultations are also being scheduled to take place during the
comment period that follows this publication in the Federal Register to
facilitate an informed final rule. See Section IV, Public Comments, for
details on upcoming consultations.
D. Status of Other Indian Trust Management Reform Regulations
The Department is also developing regulatory amendments to land
acquisitions (25 CFR part 151), leasing (25 CFR part 162), and grazing
(25 CFR part 166), and developing draft regulatory language addressing
trust fund accounting and appeals (new CFR part), unclaimed moneys/
whereabouts unknown (new CFR part), and fees for service (new CFR
part). Based on input received during the February 14-15, 2006,
Albuquerque tribal consultation session, the Department has determined
that these regulations require additional work before publication as a
proposed rule. The Department plans to promulgate these additional
regulations at some point in the future. Together, these regulatory
changes will provide the Department with the tools it needs to better
serve beneficiaries and will standardize procedures for consistent
[[Page 45176]]
execution of fiduciary responsibilities across BIA Regions.
III. Overview of Proposed Rule
The proposed rule amends various parts of the CFR to further
implement Indian trust management reform and meet the policies
expressed by Congress in ILCA, as amended by AIPRA. Together, these
amendments form an integrated approach to Indian trust management
related to probate, land records and title documents, and conveyances
that allow the Department to better meet the needs of its
beneficiaries.
The Department has revised many of these regulations, in accordance
with the Plain Language Initiative (63 FR 31885 (June 10, 1998)) to
facilitate ease of use and public comprehension.
In addition to making plain language revisions, amendments revise
the regulations to:
Incorporate AIPRA changes to probate: AIPRA created a
uniform probate code to standardize intestate succession rules for
trust and restricted property. The uniform probate code reinforces
tribal sovereignty by eliminating the application of state laws in the
probate of trust and restricted assets while deferring to approved
tribal probate codes. AIPRA also established new mechanisms for
consolidating fractionated interests at probate and through sale of
highly fractionated tracts. The proposed amendments to probate
regulations would implement AIPRA's provisions by requiring the
additional information needed to determine heirs and devisees to be
included in the probate file, and by establishing the procedures for
directional disclaimers, purchases at probate and consolidation
agreements. These regulations continue to refer all probate cases to
OHA. The amendments streamline the OHA process by shortening deadlines
to more reasonable time periods. Amendments to life estate provisions
reflect AIPRA's change in the valuation of a life estate to be
``without regard to waste'' and base the valuation on the four-year
average Single Life Factor used by the U.S. Internal Revenue Service in
Table S of the 7520 rate schedule, without regard to gender.
Promote consolidation (reduce fractionation) of interests:
Allotments owned by Indians have become increasingly fractionated with
the probate of each generation, resulting in the division of the
allotment into smaller and smaller interests. These amendments meet the
policy expressed by Congress to reduce fractionation (i.e., the
exponential increase in the number of ownership interests in a given
parcel of land) of tribal and individual Indian interests in trust and
restricted property through the use of several tools. These tools
include the opportunities for tribes to establish a tribal land
consolidation plan; purchase interests in land within their respective
jurisdictions when offered for negotiated sale, gift, or exchange; make
a tribal tract purchase (i.e., obtain fractionated interests of non-
consenting trust and restricted owners under certain circumstances);
and unify ownership and consolidate interests in a tract through
partition. The amendments allow both tribes and individual Indians to
obtain highly fractionated interests through a new mechanism, created
by AIPRA: consolidation by sale (called ``partition of highly
fractionated lands'' in AIPRA). Additionally, the new AIPRA mechanisms
being incorporated in probate regulations will offer opportunities to
reduce fractionation through the distribution of probate property.
Improve service to beneficiaries: Amendments to the Land
Titles and Records Office (LTRO) regulations will update and
standardize LTRO title practices and recordation to ensure the
Secretary is able to accurately track and record accounting of trust
and restricted interest owners, allowing the Secretary to better serve
the beneficiaries. Amendments to the probate process are aimed at
facilitating the process to reduce the probate backlog and better serve
beneficiaries. By clarifying the requirements and processes for
probate, approval of tribal probate codes, obtaining LTRO services and
products, and conveying trust and restricted property, the Department
improves communication and transparency, allowing better service to
beneficiaries.
The Department is committed to fully explaining both the purpose
and intended effects of these regulations in this preamble. More
detailed explanations of each part are provided below, followed by
summaries of comments received during tribal consultations on the
preliminary drafts of these regulations. The Department welcomes any
questions or comments requesting clarification of these parts, as well
as additional comments. Additionally, upon finalization of any of these
regulations, the Department plans to develop training and other
explanatory materials, where appropriate, to facilitate transparency in
implementation of these regulations.
IV. Part-by-Part Analysis
The following sections provide a description of the amendments with
respect to each CFR part and provide distribution tables listing what
current CFR sections are proposed for change, the new (i.e., proposed)
CFR section, and a description of the proposed changes. Because this
proposed rule incorporates changes made to the preliminary drafts,
which were distributed to tribes in December 2005, the following part-
by-part analysis includes a discussion of major changes made to each
preliminary draft of the CFR part in response to comments.
A. 25 CFR Part 15
The purpose of this part is to describe the authorities, policies
and procedures the BIA (or tribe that has contracted or compacted to
fulfill probate functions) uses to prepare a probate file for an Indian
decedent's trust estate, except for restricted land derived from
allotments made to members of the Five Civilized Tribes (Cherokee,
Choctaw, Chickasaw, Creek and Seminole) in Oklahoma.
Amendments to this part revise several subsections to ensure that
the probate file delivered to OHA for adjudication is as complete as
possible. By requiring a certification by BIA that they have examined
certain sources of information and that the file is as complete as
possible based on those sources of information, the amendments will
prevent multiple transfers of the probate file between BIA and OHA,
facilitating the process. Additional changes to the records
requirements, such as deleting the requirement for a birth certificate,
are also intended to facilitate the probate process.
The amendments ensure that information is included in the probate
file to determine whether heirs and devisees meet the AIPRA definition
of ``Indian.'' The amendments also incorporate definitions regarding
AIPRA's new methods for consolidating interests at probate:
Consolidation agreements, which are agreements by the
decedent's heirs and devisees to consolidate their inherited/devised
interests in trust and restricted land or consolidate their inherited/
devised interests in land with other interests they already own in
trust and restricted land; and
Purchase options at probate, which allow eligible
purchasers to purchase or exchange a decedent's interest in trust or
restricted land.
Amendments to this part ensure that the probate file contains
information necessary for implementation of statutory solutions to
fractionation set out in 43 CFR part 4, which addresses OHA probate
hearings. Part 15 prescribes what must be included in a probate package
and how it will be compiled.
[[Page 45177]]
Changes From Preliminary Draft
Several tribal commenters questioned why 25 CFR part 15 and 43 CFR
part 4, which both address the probate process, are in separate CFR
titles. The Department has determined that because these two parts
address different agencies--25 CFR part 15 addresses BIA preparation of
the probate file, and 43 CFR part 4 addresses adjudication of the
probate file once OHA receives it from BIA--these parts are best kept
in their respective titles.
Several commenters suggested that the definitions in both 25 CFR
part 15 and 43 CFR part 4 should track the definitions as set out in
ILCA, as amended by AIPRA. The Department has reviewed the regulatory
definitions, and amended them as appropriate to ensure that they are
consistent with AIPRA and with 43 CFR parts 4, 30.
The Department examined and changed terms, as appropriate, to
ensure consistency with definition of terms in 43 CFR parts 4, 30. The
Department also amended other terminology as a result of issues raised
by tribal commenters: for example, it changed ``trust financial
assets'' and ``cash assets'' to ``trust personalty'' to encompass both
cash and securities, and it changed ``beneficiaries'' to ``devisees,''
which is a more precise term including only those who receive under a
will. In section 15.8, the Department clarified what is meant by a
``self-proved will.''
In response to tribal comments, the Department also significantly
amended section 15.14. In the preliminary draft, this section had
provided that, pending probate, the Secretary could take custody and
control of the estate and take any action he or she determined to be
necessary for the benefit of the estate, including sale of the land.
The version of this section being proposed today instead provides
limited emergency actions that BIA may take when assets in an estate
may be significantly diminished or destroyed while the probate is
pending. Each of the emergency actions require a request to or hearing
before OHA, so no unilateral action may be taken to sell land pending
probate under this provision.
At least one tribal commenter objected to the last provision in
section 15.106 of the preliminary draft, allowing the Secretary to
request any additional information in support of the probate file. The
Department has deleted the provision allowing the Secretary to require
additional information in support of the probate file.
The Department also clarified when claims against an estate may be
filed and the deadline for filing such claims in section 15.202.
Distribution Table--25 CFR Part 15
The following distribution table indicates where each of the
current regulatory sections in 25 CFR part 15 is located in the
proposed 25 CFR part 15.
----------------------------------------------------------------------------------------------------------------
New
Current citation citation Title Remarks
----------------------------------------------------------------------------------------------------------------
15.1................................. 15.1 What is the purpose of this No change.
part?
15.2................................. 15.2 What terms do I need to know? Additional definitions.
15.3 Who can make a will disposing New section.
of trust or restricted land
or trust personalty?
15.4 What are the requirements for New section.
my will?
15.5 Can I revoke my will? New section.
15.6 Can my will be deemed revoked New section.
by the operation of the law
of any state?
15.7 What is a self-proved will? New section.
15.8 Can I make my will, codicil, New section.
or revocation self-proved?
15.9 Do affidavits for my self- New section.
proved will, codicil, or
revocation have to be in a
certain format?
15.3................................. 15.10 Will the Secretary probate Clarifies that the Secretary
all the land or assets in an will probate only the trust
estate? or restricted property in an
estate.
15.4................................. 15.11 How does the probate process Administrative changes.
work?
15.12 What happens if assets in a New section.
trust estate may be
diminished or destroyed
while the probate is
pending?
15.101............................... 15.103 How do I begin the probate Clarifies whom to contact at
process? BIA to inform of a death.
15.104 Does BIA need a death Clarifies that a death
certificate to prepare a certificate should be
probate file? provided and lists
information and documents
that must be provided if no
death certificate is
available.
15.102............................... 15.102 Who may notify BIA of a Plain language.
death?
15.103............................... 15.101 When should I notify BIA of a Plain language.
death?
15.104, 15.105....................... 15.105 What other documents does BIA Clarifies that certain
need to prepare a probate documents may come from an
file? authority other than a
court. Adds requirement for:
orders requiring payment of
spousal support;
identification of person or
entity in whose favor an
interest is renounced; court
judgments regarding creditor
claims; and place of
enrollment and tribal
enrollment or census number
of the decedent and
potential heirs and
beneficiaries. Deletes
requirement for birth
certificate.
15.106............................... 15.201 Can I get funds from the Plain language.
decedent's IIM account for
funeral services?
15.107............................... 15.107 Who prepares a probate file? Incorporates new ``probate
staff'' definition.
15.108............................... 15.108 If the decedent was not an Redesignated. Plain language.
enrolled member of a tribe
or was a member of more than
one tribe, who prepares the
probate file?
[[Page 45178]]
15.106 Can a probate case be opened New section.
when an owner of an interest
has been absent?
15.201............................... 15.301 What will BIA do with the Clarifies that BIA will also
documents that I provide? examine other documents and
information (beyond those
provided) to prepare a
complete probate file and
will transfer the probate
file to OHA.
15.202............................... 15.202 If the decedent owed me Adds requirements to provide
money, how do I file a claim certain additional
against the estate? information in support of
claim. Changes deadline for
filing a claim to the
conclusion of the first
hearing rather than 60 days
of verification of death.
15.203............................... 15.302 What items must BIA include Clarifies what the certified
in the probate file? inventory of trust or
restricted real property
should contain. Adds
requirements for supporting
documents.
15.303 When is a probate file New section.
complete?
15.301............................... 15.401 What happens after BIA Redesignated. Deletes
prepares the probate file? notification to interested
parties.
15.302............................... 15.402 What happens after the Adds provisions describing
probate file is referred to how BIA will handle claims
OHA? it receives after it refers
the probate file to OHA.
15.303............................... 15.403 What happens after the Establishes a 30-day time
probate decision is made? period to file a written
request for de novo review,
a request for rehearing with
the OHA deciding official,
or an appeal. Establishes
that BIA will not pay
claims, transfer title, or
distribute assets pending a
de novo review, rehearing,
or appeal.
15.401............................... 15.501 How can I find out the status Clarifies that interested
of a probate? parties may contact the BIA
agency or regional office.
15.402............................... 15.502 Who owns the records Clarifies that records made
associated with this part? by or on behalf of the
United States are owned by
the United States.
15.403............................... 15.503 How must records associated Redesignated. Plain language.
with this part be preserved?
15.504 Who may inspect these Redesignated. Plain language.
records?
15.505 What information must tribes Establishes that tribes must
provide BIA to complete the provide certain information
probate file? when necessary to complete a
probate file.
15.506 How does the Paperwork New section.
Reduction Act affect this
part?
----------------------------------------------------------------------------------------------------------------
B. 25 CFR Part 18 [NEW]--Tribal Probate Codes
This new CFR part addresses the process for obtaining Secretarial
approval of a tribal probate code and lists factors the Secretary will
consider in reviewing the tribal probate code for approval. While
tribes have had the authority to adopt their own tribal probate codes
governing descent and distribution of trust and restricted lands
located within the tribes' respective reservations or otherwise subject
to the tribes' jurisdiction, part 18 clarifies that a tribe must obtain
Secretarial approval of the code. This part lists the factors the
Secretary will consider in reviewing a tribal probate code and
establishes when an approved code, repeal, or amendment becomes
effective. Upon approval, this part requires the tribe to notify tribal
members of the tribal probate code.
Changes From Preliminary Draft
The Department made several plain language changes to the
preliminary draft, which has resulted in combining certain sections and
rearranging the sections to some degree. The Department added a new
subsection (b) to section 18.1 to clarify that a tribal probate code
may provide for a single heir rule that differs from the one provided
in AIPRA.
The Department also clarified section 18.8(b) (section 18.9 in the
preliminary draft) to provide that a tribal probate code or amendment
will be applied to the estates of decedents who die on or after the
effective date, rather than the date of approval, of the tribal probate
code or amendment.
Finally, tribal commenters objected to section 18.12 of the
preliminary draft, which provided how tribes should notify their
members of a tribal probate code or amendment, as an inappropriate
incursion into tribal sovereignty. The Department has deleted this
section in its entirety.
Note: A distribution table is not included here because these
provisions are entirely new.
C. 25 CFR Part 150--Indian Land Record of Title
The LTRO determines, maintains, and certifies the title status of
Indian land and provides various land title products and services to
individual Indians, tribes, and other members of the public for land
held in trust or restricted status by the United States. Trust status
means that title is held by the United States in trust for the benefit
of an individual Indian or tribe. Restricted status means ownership of
the property is subject to Federal restrictions against alienation and/
or encumbrance.
The proposed rule replaces 25 CFR part 150, Land Records and Title
Documents, in its entirety, to provide clarification of LTRO's
procedures and increase the ability of the LTRO to provide services and
products to Indians, tribes, and the public comparable to those
provided by state and local land records offices. The changes are
described subpart by subpart, below.
Subpart A of the proposed rule, Purpose, Definitions, and Public
Information, clarifies that the
[[Page 45179]]
Department will provide access to the information in the Indian Land
Record of Title to individual Indians, tribes, and the public, except
in those instances where access would violate law or policy restricting
access to such records. The definition of ``Indian land'' is clarified
to include only lands in trust or restricted status and Federal
government-owned land that is under the jurisdiction of the BIA, and
not land held in fee by Indians or fee land subject to the rights,
occupancy, and use of Indians.
Subpart B of the proposed rule, The Indian Land Record of Title
Designation as the Official Record of Indian Land, designates the
Indian Land Record of Title as the official record of title instruments
affecting Indian land. The proposed rule clarifies that constructive
notice of the existence of the title instrument is provided by
recording the instrument in the Indian Land Record of Title. Recording
instruments with other Federal or state offices does not provide
constructive notice with regard to Indian land.
Subpart C of the proposed rule, LTRO Procedures and Requirements to
Record Instruments in the Indian Land Record of Title, designates the
LTRO as the organization within the Federal government that has the
responsibility to maintain the Indian Land Record of Title. This
subpart describes the LTRO process for receiving and recording title
and the process for correcting an error or omission in an LTRO product
or service.
Subpart D of the proposed rule, Services and Products of the LTRO,
describes the types of services and products offered by the LTRO.
Subpart D also proposes charging fees to certain parties for the
services and products provided by LTRO. The proposed fees implement the
authority contained in 25 U.S.C. 413 and address a Congressional
directive, in 31 U.S.C. 9701, for agencies to begin charging fees that
are fair and reasonable based upon the value of the service provided by
the Federal office. Under 25 U.S.C. 14b, the Secretary may order that
such funds be directed to the appropriation account for the LTRO. A fee
schedule will be published as a notice separate from this proposed
rule. The proposed rule specifies exceptions to the fee.
These proposed provisions will provide a greater benefit to
individual Indians, tribes, and the public through clarification of
LTRO procedures and will improve LTRO's ability to serve beneficiaries.
Changes From Preliminary Draft
Since distribution of the preliminary draft, the Department made
several changes to part 150. For example, the Department added cross-
references to 43 CFR part 30 in proposed sections 150.206 and 150.207,
relating to corrections of final probate records. The proposed part 150
also moves two sections regarding how to notify the LTRO of an error or
omission in a service or product from subpart D to subpart C, for
clarity. (See proposed section 150.208). The Department deleted the
section in the preliminary draft, ``What certified products does the
LTRO produce,'' and added the section, ``What services and products may
I order from the LTRO.'' Additional changes and issues are discussed
below.
Terminology: The Department added language to clarify several
definitions, including ``interest,'' ``Land Titles and Records
Office,'' ``title,'' and ``title instrument.'' The Department also
rewrote the definition for ``tribe'' to be consistent with existing
regulatory definitions for this term.
Throughout the rule, the Department has modified the terminology to
clarify that the rights of the individual beneficiary and tribe relate
to an interest in trust (see also 25 CFR part 179).
Effect on Tribes that Compact or Contract LTRO Functions: Several
tribal commenters requested clarification on how this rule affects
tribes that perform LTRO functions under a contract or compact. Records
maintained by tribes under such a contract or compact are part of the
Indian Land Record of Title and must be maintained under the same
standards and policies. As such, the regulation includes compact and
contract tribes under the definition of the ``Land Titles and Records
Office'' for grammatical and textual convenience purposes. The
inclusion of compact and contract tribes under this definition is not
intended to reflect a limitation on the sovereignty of these tribes.
Certain functions performed by the LTRO are inherently Federal
functions and can only be performed by a government agency. The
inclusion of the compact and contract tribes in this definition is not
intended to authorize any such tribe to perform any inherently Federal
function.
Access to the Indian Land Record of Title: Several Indian
commenters raised the issue of access to LTRO information.
Specifically, these commenters pointed out that they are being denied
access to LTRO information, sometimes under the auspices of the Privacy
Act. The rule clarifies that the Indian Land Record of Title is a
public record but that access is subject to the Privacy Act, Freedom of
Information Act, and other law or policy restricting access. In some
instances, portions of a copy of the title instruments must be redacted
under the Privacy Act to eliminate personal information not otherwise
included in the Indian Land Record of Title. Additionally, the
Department may restrict access to reports prepared for the Secretary.
The LTRO performs functions other than entering information into the
Indian Land Record of Title and providing copies of maps and title
instruments--the LTRO also takes the information from the record,
reviews and examines and draws conclusions about it in preparation of a
report. Where the LTRO prepares a report for the benefit of the
Secretary, the Secretary has the discretion to restrict access to the
report. For example, the public may not obtain a copy of the Probate
Inventory Report until OHA opens the probate case. While access to the
Indian Land Record of Title may be restricted by the Freedom of
Information Act, Privacy Act, or other law or policy, the Department
believes that in most cases, neither law or policy will restrict access
to these records by individual Indians or tribes. Generally,
information included in the Indian Land Record of Title will be
available to the public without restriction. The Department has also
clarified that owners of an interest in trust or restricted land within
the same reservation, the tribe or any person that is leasing, using,
or consolidating, or is applying to lease, use, or consolidate, such
trust or restricted land or the interest in trust or restricted lands
may obtain the following information without regard to the Privacy Act
and any exemption contained in the Freedom of Information Act: The
names, mailing addresses, information on the location of the parcel,
and percentage of the parcel owned by each individual.
Who Approves Title Instruments: The Department has deleted as
unnecessary the section regarding who the Federal officials are that
approve title instruments.
Fees: Based on input received on the preliminary drafts, the
Department recognizes that there is strong opposition to requiring
Indians and tribes to pay for LTRO services and products. Several
tribal commenters also expressed a preference for charging fees
exclusively to non-Indians because they believe that providing LTRO
products and services to non-Indians without charge burdens the LTRO
and diverts monies from other Indian and tribal programs. The
Department welcomes continued feedback on the
[[Page 45180]]
proposal for charging fees for LTRO products and services. The
Department will continue to review ways to maximize the efficiency and
effectiveness of the products and services provided by the LTRO and
consider whether charging fees can assist with this effort. The
Department has removed the fee schedule from the text of the regulation
and will publish it in a separate notice. This will allow the
Department to revise the fees without having to amend the rule.
LTRO Response Time: During tribal consultations, several tribal
commenters expressed their frustration at what they characterized as
the slowness of the LTRO in responding to requests to provide services
and products. The Department is currently undergoing implementation of
a technological system that will provide a centralized database of the
Indian Land Record of Title. It is the Department's belief that this
system will increase the LTRO's ability to respond to requests for
products and services in a more timely manner. Several tribal
commenters suggested imposing timelines on the LTRO to respond to
requests. Due to the complexity and variety of title instruments and
reports generated from the information in the Indian Land Record of
Title, the Department is unable to establish a baseline time period.
Additionally, the Department believes that establishing time frames
within this regulation would limit the flexibility to amend those time
frames to reflect changes in processes.
Distribution Table--25 CFR Part 150
The following distribution table indicates where each of the
current regulatory sections in 25 CFR part 150 is located in the
proposed 25 CFR part 150.
----------------------------------------------------------------------------------------------------------------
Current citation New citation Title Remarks
----------------------------------------------------------------------------------------------------------------
150.1............................ 150.1 What is the purpose of Clarifies purpose by
this part? expanding on the
services and products
LTRO provides.
150.2............................ 150.2 What terms do I need to Adds several definitions
know? for clarification.
150.4 Do I have to be an Indian New section.
or a tribe to obtain
products or services
from the Lands Titles
and Records Office?
150.101 Must all title Designates the Indian
instruments affecting Land Record of title as
Indian land be recorded the official record of
in the Indian Land title instruments
Record of Title? affecting Indian land.
Clarifies that recording
with the Indian Land
Record of Title serves
as constructive notice
that the title
instrument exists.
150.102 Do I have to check with Clarifies that the Indian
any other governmental Record of Land Title is
office to find title the source of all
instruments to Indian recorded instruments.
land?
150.3............................ 150.201 Who maintains the Indian Establishes the LTRO as
Land Record of Title? the office responsible
for maintaining the
Indian Land Record of
Title.
150.4............................ 150.202 Where is the LTRO Indicates that the LTRO
located? has locations throughout
the United States, and
that Bureau offices
maintain contact
information.
150.5............................ ....................... ......................... Deleted.
150.6............................ 150.203 Who submits the title Clarifies that BIA and
instruments for other government offices
recording? may submit title
documents for recording.
Deletes specific
reference to the
Administrative Law Judge
submitting probate
documents.
150.204 What does the LTRO do Restates the steps LTRO
with the instruments takes when it receives
that it receives? documents.
150.205 What are the minimum Clarifies requirements
requirements for for recording.
recording a title
instrument?
150.7............................ 150.206 What if the LTRO Specifies LTRO procedures
discovers a defect or to address defects or
error in a document? errors discovered after
recording.
150.207 What if a defect or error Restates requirement for
in a final probate LTRO notification to
record cannot be deciding official for
corrected?. non-clerical errors in
probate records.
Establishes that the
corrected document will
be filed in the Indian
Land Record of Title.
Deletes reference to
``Superintendent'' and
Administrative Law
Judges.
150.208 How do I correct an error New section.
or omission in a title
instrument or LTRO
product or service?
150.209 What instruments qualify New section.
for recording in with
the LTRO?
150.210 Does the LTRO maintain New section.
the original title
instruments?
150.211 May I obtain a copy of New section.
the title instrument
from the LTRO?
150.301 What services and New section.
products may I order
from the LTRO?
150.8............................ 150.302 How do I order services Discusses how to order
and products from the any of LTRO's services
LTRO? and products.
150.303 Does BIA charge fees for New section.
any of the services
provided by, or products
produced by, the LTRO?
150.304 What will the LTRO do if New section.
the instrument contains
information that is
privileged or protected?
[[Page 45181]]
150.305 How does the Paperwork New section.
Reduction Act affect
this part?
150.9............................ ....................... ......................... Deleted.
150.10........................... 150.212 Is there any benefit of Restates that a certified
obtaining a certified copy can be used in
copy of the title? place of an original in
court or elsewhere.
150.11........................... 150.3 When can I see land and Clarifies Department
title information from policy to allow public
the Indian Land Record access to the Indian
of Title? Land Record of Title.
Deletes provision
regarding nondisclosure
of monetary
consideration and
provision.
----------------------------------------------------------------------------------------------------------------
D. 25 CFR Part 152--Conveyances
This part establishes the authorities, policy, and procedures
governing the conveyance of trust or restricted land. Amendments
reorganize this part to clarify the different procedures and
requirements applicable to each type of conveyance. The reorganized
sections incorporate statutory solutions aimed at reducing
fractionation of interests. One such solution, consolidation by sale,
is newly established by AIPRA. Consolidation by sale allows one or more
eligible bidders to consolidate highly fractionated land by buying the
highly fractionated interests at fair market value through a sale
conducted by the Secretary. The amendments also:
Provide instances where consent of the trust or restricted
co-owner is not required to convey a fractional interest, making it
easier to consolidate interests;
Allow conveyance of land within a tribe's jurisdiction
without tribal consent where the grantor owns 100% of the tract;
Allow tribes to purchase fractional interests of non-
consenting trust and restricted owners at fair market value (tribal
tract purchases); and
Clarify that the Secretary will have a lien on income
derived from any interest purchased for a tribe under the Indian Land
Consolidation program in the amount of the purchase price, until the
lien is satisfied or removed by the Secretary.
The reorganization divides this part into various subparts.
Proposed subpart A, General Provisions, provides relevant definitions,
describes to whom the Secretary will provide ownership information
related to conveyance in this part, and establishes the scope of the
regulations.
Subpart B, Sales and Exchanges of Tribal Trust or Restricted Land,
addresses sales and exchanges of tribal land pursuant to an approved
tribal consolidatio