Indian Trust Management Reform-Implementation of Statutory Changes, 7500-7508 [2011-2896]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of the Secretary
• Bureau of Indian Affairs

[Federal Register Volume 76, Number 28 (Thursday, February 10, 2011)]
[Rules and Regulations]
[Pages 7500-7508]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-2896]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 15

Office of the Secretary

43 CFR Parts 4, 30

[Docket ID: BIA-2009-0001]
RIN 1076-AF07


Indian Trust Management Reform--Implementation of Statutory 
Changes

AGENCY: Bureau of Indian Affairs, Office of the Secretary, Interior.

ACTION: Interim final rule with request for comments.

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SUMMARY: This interim final rule implements the latest statutory 
changes to the Indian Land Consolidation Act, as amended by the 2004 
American Indian Probate Reform Act and later amendments (ILCA/AIPRA). 
These changes primarily affect the probate of permanent improvements 
owned by a decedent that are attached to trust or restricted property 
owned by the decedent. These changes also affect the purchase of small 
fractional interests at probate by restricting who may purchase without 
consent and what interests may be purchased without consent.

DATES: This interim final rule is effective on February 10, 2011. 
Submit comments by March 14, 2011.

ADDRESSES: You may submit comments by any of the following methods:

--Federal rulemaking portal: https://www.regulations.gov. The rule is 
listed under the agency name ``Bureau of Indian Affairs.'' The rule has 
been assigned Docket ID: BIA-2009-0001. If you would like to submit 
comments through the Federal e-Rulemaking Portal, go to https://www.regulations.gov and do the following. Go to the box entitled 
``Enter Keyword or ID,'' type in ``BIA-2009-0001,'' and click the 
``Search'' button. The next screen will display the Docket Search 
Results for the rulemaking. If you click on BIA-2009-0001, you can view 
this rule and submit a comment. You can also view any supporting 
material and any comments submitted by others.
--E-mail: Michele.Singer@bia.gov. Include the number 1076-AF07 in the 
subject line of the message.
--Fax: (505) 563-3811. Include the number 1076-AF07 in the subject line 
of the message.
--Mail: Michele Singer, Office of Regulatory Affairs & Collaborative 
Action, U.S. Department of the Interior, 1001 Indian School Road, NW., 
Suite 312, Albuquerque, NM 87104. Include the number 1076-AF07 in the 
subject line of the message.
--Hand delivery: Michele Singer, Office of Regulatory Affairs & 
Collaborative Action, U.S. Department of the Interior, 1001 Indian 
School Road, NW., Suite 312, Albuquerque, NM 87104. Include the number 
1076-AF07 in the subject line of the message.

    We cannot ensure that comments received after the close of the 
comment period (see DATES) will be included in the docket for this 
rulemaking and considered. Comments set to an address other than those 
listed above will not be included in the docket for this rulemaking.

FOR FURTHER INFORMATION CONTACT: Michele Singer, Office of Regulatory 
Affairs & Collaborative Action, U.S. Department of the Interior, 1001 
Indian School Road, NW., Suite 312, Albuquerque, NM 87104, phone: (505) 
563-3805; fax: (505) 563-3811; e-mail: Michele.Singer@bia.gov.

SUPPLEMENTARY INFORMATION:

I. Background
II. Description of Changes
    A. Purchase at Probate
    B. Permanent Improvements
    1. Rule of Descent When Decedent Died Intestate
    2. Presumption When Decedent Died Testate (i.e., With a Valid 
Will)
    3. Jurisdiction Over Permanent Improvements
    4. Recourse To Avoid Potential Diminishment or Destruction of 
Permanent Improvements Pending Probate
    C. List of All Regulatory Changes Made by This Interim Final 
Rule
III. Procedural Requirements
    A. Regulatory Planning and Review (E.O. 12866)
    B. Regulatory Flexibility Act
    C. Small Business Regulatory Enforcement Fairness Act
    D. Unfunded Mandates Reform Act
    E. Takings (E.O. 12630)
    F. Federalism (E.O. 13132)
    G. Civil Justice Reform (E.O. 12988)
    H. Consultation With Indian Tribes (E.O. 13175)
    I. Paperwork Reduction Act
    J. National Environmental Policy Act
    K. Information Quality Act
    L. Effects on the Energy Supply (E.O. 13211)
    M. Clarity of This Regulation
    N. Public Availability of Comments
    O. Determination To Issue an Interim Final Rule With Immediate 
Effective Date

I. Background

    On November 13, 2008, the U.S. Department of the Interior published 
a final rule related to Indian trust management in the areas of 
probate, probate hearings and appeals, Tribal probate codes, and life 
estates and future interests in Indian land (73 FR 67256). The final 
rule updated regulations to, among other things, implement ILCA/AIPRA. 
On November 20, 2008, Congress passed a bill that made several changes 
to ILCA/AIPRA. On December 2, 2008, the President signed the bill into 
law. See Public Law 110-453. This interim final rule updates the 
affected regulatory provisions to reflect the changes that Public Law 
110-453 made to ILCA, as amended by AIPRA.

II. Description of Changes

    There are two main subjects covered by this interim final rule: 
purchase at probate and the treatment of permanent improvements. This 
interim final rule also makes additional, non-substantive 
clarifications.

[[Page 7501]]

A. Purchase at Probate

    Public Law 110-453 amended statutory provisions regarding the 
purchase at probate of small undivided interests. Previously, ILCA/
AIPRA had stated that an heir's consent was not required for the 
purchase of an interest that would pass to the heir through intestate 
succession if the interest passing was less than 5 percent of the 
entire undivided ownership in the parcel. The public law changed ILCA/
AIPRA, to provide that the heir's consent is not required for the 
purchase of an interest, under specified conditions, where the 
decedent's interest in the parcel, rather than the interest passing to 
the heir, is less than 5 percent of the entire undivided ownership in 
the parcel.
    The conditions specified in the public law for purchase without 
consent are that: (1) The interest is passing by intestate succession; 
(2) the decedent's interest in the land represents less than 5 percent 
of the entire undivided ownership in the parcel; (3) either the 
Secretary, under the Indian Land Consolidation Program on behalf of the 
Tribe with jurisdiction over the parcel, or the Tribe itself, purchases 
the interest; (4) the heir or surviving spouse is not living on the 
parcel; and (5) if the Tribe is the purchaser, the heir or surviving 
spouse is not a member or eligible to be a member of the Tribe.
    Therefore, under the changes made by the public law, the consent of 
an heir is not required for purchase of an interest at probate that 
would pass via intestate succession, if the decedent's interest is less 
than 5 percent of the entire undivided ownership in the parcel, and if 
the Secretary or the Indian Tribe with jurisdiction, under the 
circumstances explained above, purchases the interest.
    To address this statutory change, this interim final rule revises 
43 CFR 30.163 to change the threshold for consent to whether the 
decedent owns less than 5 percent of the entire undivided ownership in 
the parcel, and to incorporate the new limitations regarding who may 
purchase at probate without consent.

B. Permanent Improvements

    Public Law 110-453 amended ILCA/AIPRA to specify what happens to 
permanent improvements when someone dies owning both trust land, or an 
interest in trust land, and a permanent improvement, or an interest in 
the permanent improvement, attached to that trust land.
1. Rule of Descent When Decedent Died Intestate
    The Public Law established a rule of descent for permanent 
improvements attached to trust or restricted property where the 
decedent owns an interest in both the permanent improvement and the 
underlying trust or restricted property. The rule of descent is that 
the decedent's interest in any permanent improvement attached to trust 
property will descend with the decedent's interests in the underlying 
trust property, where the decedent died intestate. This rule of descent 
will apply only if a Tribal probate code approved pursuant to 25 U.S.C. 
2205, or approved consolidation agreement does not provide for a 
different descent. If a Tribal probate code approved pursuant to 25 
U.S.C. 2205 or approved consolidation agreement specifies how permanent 
improvements will descend, then that code or agreement will govern. If 
there is a renunciation, then the person receiving the interest in the 
underlying trust or restricted land under the renunciation will also 
receive the interest in the permanent improvement.
    The rule of descent applies only to decedents who died on or after 
December 2, 2008 (the effective date of Pub. L. 110-453). Therefore, if 
a decedent owned an interest in a parcel that is trust or restricted 
property, and also owned an interest in the house on that parcel, then 
ownership of the decedent's interest in the house passes to the heir(s) 
receiving the decedent's interest in the parcel, if (1) The decedent 
died on or after December 2, 2008; (2) there is no applicable and 
approved Tribal probate code or consolidation agreement among the heirs 
stating otherwise; and (3) the heir(s) have not renounced the interest 
in the parcel.
2. Presumption When Decedent Died Testate (i.e., With a Valid Will)
    Public Law 110-453 also amended ILCA/AIPRA to establish a 
presumption for permanent improvements attached to trust or restricted 
property where the decedent owned an interest in both the permanent 
improvement and the underlying trust or restricted property. When a 
decedent dies with a valid will that devises the decedent's interests 
in trust land, the presumption is that the devise includes the interest 
of the decedent in any permanent improvements attached to that trust 
land.
    The presumption applies only to decedents who died on or after 
December 2, 2008. Therefore, if a decedent owned an interest in a 
parcel that is trust or restricted property, and also owned an interest 
in the house on that parcel, then ownership of the decedent's interest 
in the house passes to the devisee(s) receiving the decedent's interest 
in the parcel, if (1) the decedent died on or after December 2, 2008; 
and (2) the will does not expressly provide otherwise.
3. Jurisdiction Over Permanent Improvements
    As a general rule, the Department considers permanent improvements 
to be non-trust property, and OHA does not probate them. The Department 
does not keep an inventory of permanent improvements on trust or 
restricted lands, nor is the Department responsible for maintaining the 
covered permanent improvements on trust lands. Nevertheless, in cases 
where the decedent died on or after December 2, 2008, the 
Administrative Law Judges (ALJs) and Indian Probate Judges (IPJs) will 
include in probate orders a general statement of the substantive law of 
descent or devise of permanent improvements. The orders will determine 
the heirs or devisees of trust property and direct its distribution, as 
usual. The courts of competent jurisdiction that normally probate non-
trust property (i.e., Tribal and State courts) would then apply the 
substantive rules of descent or devise, as stated in ILCA/AIPRA, to any 
non-trust permanent improvements, based on the ALJ's or IPJ's 
determination of heirs or devisees and their respective interests.
    If the Tribal or State court has already completed the probate of 
the decedent's non-trust property by the time the ALJ or IPJ issues a 
probate order, the heirs or devisees may have the opportunity to 
petition the Tribal or State court to reopen the estate, if necessary, 
to reflect the proper descent or devise of the decedent's interest in 
any non-trust permanent improvements.

C. List of All Regulatory Changes Made by This Interim Final Rule

``Trust estate''
    The interim final rule changes ``trust estate'' to ``estate'' in 
several sections: 25 CFR 15.1, 15.2 (definition of ``you or I''), 
15.12; 43 CFR 4.320, 30.100, 30.101 (definition or ``you or I''), 
30.110, 30.140. This is not a substantive change. This change has been 
made because ``estate'' is already defined to mean ``the trust or 
restricted land and trust personalty owned by the decedent at the time 
of death,'' making the phrase ``trust estate'' redundant.

[[Page 7502]]

25 CFR Part 15
Section 15.2 What definitions do I need to know?
    In the definition of ``summary probate proceeding,'' the word 
``does'' is changed to ``did'' to correct the tense. This is not a 
substantive change; it is merely a grammatical change that is 
appropriate because the threshold amount will be determined as of a 
past date (the date of death).
Section 15.10 What assets will the Secretary probate?
    The interim final rule deletes references to ``estate'' in this 
section to eliminate the redundancy in the phrase ``trust or restricted 
land or personalty in an estate'' and to better explain what the 
Secretary probates. For consistency, the interim final rule also 
changes the heading to this section from ``Will the Secretary probate 
all the land and assets in an estate?'' to ``What assets will the 
Secretary probate?'' This change clarifies what the Secretary probates 
by explaining what is in an estate, rather than referring to the term.
Section 15.202 What items must the agency include in the probate file?
    This section addresses what items the agency must include in the 
probate file. Paragraph (e) requires that a certified inventory of 
trust and restricted land be included, and states that such inventory 
should include ``accurate and adequate descriptions of all land and 
appurtenances.'' The interim final rule deletes the phrase ``and 
appurtenances'' because BIA does not maintain records on appurtenances, 
and appurtenances have not been, and are not included in certified 
inventories. Deleting ``and appurtenances'' is consistent with the 
change that Public Law 110-453 made to the definition of ``land'' in 25 
U.S.C. 2201(7). That definition used to read, ``any real property, and 
includes within its meaning for purposes of this Act improvements 
permanently affixed to real property.'' Congress deleted the reference 
to ``improvements permanently affixed to real property,'' and the 
definition now reads simply, ``any real property.''
Section 15.203 What information must Tribes provide BIA to complete the 
probate file?
    This section clarifies that a Tribal probate order, where one 
exists, is among the documents that the Department may request to 
complete the probate file. While not binding on the Department, the 
Tribal probate order may provide relevant information regarding 
heirship, paternity, adoption, marriage, divorce, or other relevant 
matters. OHA may also refer to the Tribal probate order for 
determinations about non-trust permanent improvements that may be 
relevant in cases involving consolidation agreements and renunciations.
43 CFR Part 4
Section 4.324 How is the record on appeal prepared?
    The interim final rule amends this section to more accurately 
reflect the actual process as set forth in 43 CFR 30.233, wherein the 
ALJ provides the record to the LTRO after the probate is completed 
(rather than the agency providing the record to the LTRO). In the event 
of an appeal to the Interior Board of Indian Appeals, the ALJ or IPJ 
must also provide a transcript of the hearing to the LTRO, for 
inclusion in the record.
    The interim final rule also updates the language, deleting the verb 
``conform'' and instead using plain language to explain that the LTRO 
copies the record before sending the original to the Board and a copy 
to the agency to have available for public inspection. Where the 
current regulation specifies that the LTRO must send the original 
record to the Board by certified mail, the interim final rule adds ``or 
other service with delivery confirmation'' to allow for the use of 
delivery services such as DHL, FedEx, and UPS.
43 CFR Part 30
Section 30.100 How do I use this part?
    In addition to replacing ``trust estate'' with ``estate'' in 
paragraph (a)(6), the interim final rule adds ``or restricted'' to 
clarify that probate of the estates of Indians who die possessed of 
trust or restricted property are governed by this part.
Section 30.101 What definitions do I need to know?
    The interim final rule adds a definition of ``covered permanent 
improvement'' to this section to incorporate the definition from Public 
Law 110-453, which establishes rules of descent and devise.
    In the definition for ``summary probate proceeding,'' the word 
``does'' is changed to ``did'' to correct the tense. This is the same 
change made to the definition in 25 CFR 15.2, and is not a substantive 
change.
Section 30.102 What assets will the Secretary probate?
    As in 25 CFR 15.10, the interim final rule deletes references to 
``estate'' in this section to eliminate the redundancy in the phrase 
``trust or restricted land or personalty in an estate'' and to better 
explain what the Secretary probates. For consistency, the interim final 
rule also changes the heading to this section from ``Will the Secretary 
probate all the land and assets in an estate?'' to ``What assets will 
the Secretary probate?'' This change clarifies what the Secretary 
probates by explaining what is in an estate, rather than referring to 
the term.
Section 30.128 What happens if an error in BIA's estate inventory is 
alleged?
    The interim final rule deletes the word ``interests'' from this 
section as superfluous because the phrase ``trust property'' includes 
any interests therein. This is not a substantive change.
Section 30.142 Will a judge authorize payment of a claim from the trust 
estate if the decedent's non-trust estate was or is available?
    The interim final rule changes ``trust or restricted property'' to 
``estate,'' and changes ``estate'' to ``property,'' for clarity.
Section 30.143 Are there any categories of claims that will not be 
allowed?
    The interim final rule adds the word ``the'' where it was 
inadvertently omitted.
Section 30.151 May the devisees or eligible heirs in a probate 
proceeding consolidate their interests?
    The interim final rule adds that a consolidation agreement may 
include the interests of the decedent, the devisees, or eligible heirs 
in any covered permanent improvements attached to a parcel of trust or 
restricted land in the decedent's trust inventory. The rule also adds 
``devisees or'' where it was inadvertently omitted and simplifies the 
language by omitting the statutory references.
Section 30.160 What may be purchased at probate?
    The interim final rule deletes the phrase ``of a trust or 
restricted estate'' because the meaning of this phrase is already 
captured in ``estate.''
Section 30.163 Is consent required for a purchase at probate?
    The interim final rule rewrites this section to incorporate the 
change Public Law 110-453 made to the threshold for consent. The 
threshold is now measured by the decedent's percentage of ownership in 
a parcel, rather than the interest passing to the heir. The revised 
section also incorporates the change

[[Page 7503]]

Public Law 110-453 made allowing only the Tribe with jurisdiction over 
the interest or the Department, on behalf of the Tribe with 
jurisdiction, to purchase certain intestate interests without consent.
Section 30.167 How does OHA decide whether to approve a purchase at 
probate?
    The interim final rule incorporates the change Public Law 110-453 
made to ILCA/AIPRA, which specifies that, if multiple eligible 
purchasers make requests to purchase at probate, the heir, devisee, or 
surviving spouse may select the eligible purchaser.
Section 30.170 What may I do if I disagree with the judge's 
determination to approve a purchase at probate?
    The interim final rule updates a section number reference to 
accommodate the new section 30.236.
Section 30.236 How are covered improvements treated?
    The interim final rule adds a new section to detail how ``covered 
permanent improvements,'' which are defined in section 30.101, are 
treated. Remaining sections are renumbered to accommodate the insertion 
of this new section.
Section 30.238 May I file a petition for rehearing if I disagree with 
the judge's decision in the formal probate hearing?
    The interim final rule updates a section number reference to 
accommodate the new section 30.236.
Section 30.243 May a closed probate case be reopened?
    The interim final rule corrects a paragraph numbering error that 
resulted in two paragraphs (a)(2); the second has been renumbered 
(a)(3).
Section 30.262 When may a Tribe exercise its statutory option to 
purchase?
    The interim final rule updates a section number reference to 
accommodate the new section 30.236.
Section 30.266 When is a final decision issued?
    The interim final rule updates a section number reference to 
accommodate the new section 30.236.

III. Procedural Requirements

A. Regulatory Planning and Review (E.O. 12866)

    This interim final rule is not a significant rule and the Office of 
Management and Budget has not reviewed this rule under Executive Order 
12866. This rule implements statutory changes regarding permanent 
improvements owned by a decedent on trust or restricted property owned 
by the decedent and purchased at probate.
    The changes regarding permanent improvements incorporate statutory 
changes regarding the rule of descent, in intestate cases, and a 
presumption, in testate cases, for permanent improvements attached to 
trust or restricted land, where the decedent owns an interest in both 
the permanent improvement and underlying trust or restricted land.
    The changes regarding purchase at probate specify when an heir or 
surviving spouse's interest may be purchased at probate without his or 
her consent, generally restricting when such purchases without consent 
may be made. First, this interim final rule states that a purchase 
without consent at probate may be made only if the decedent's interest 
was less than 5 percent of the entire undivided interests in the 
parcel, which will be true in fewer cases than if the measurement were 
whether the interest passing to the heir is less than 5 percent of the 
entire undivided interest in the parcel. Second, this interim final 
rule restricts who may purchase without consent to the Secretary when 
purchasing the interest under the Indian Land Consolidation program on 
behalf of the Tribe with jurisdiction over the parcel, and the Tribe 
itself, in those cases in which the heir or surviving spouse is not a 
member or eligible to be a member of the Tribe.
    (1) This rule will not have an effect of $100 million or more on 
the economy or adversely affect in a material way the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or Tribal governments or communities. This 
rule will have no effect on the economy because it merely updates the 
regulations to reflect changes in ILCA/AIPRA made by Congress.
    (2) This rule will not create a serious inconsistency 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 related to probate. This rule does not affect the 
jurisdiction of Tribal and State courts over permanent improvements.
    (3) This rule does involve entitlements, grants, user fees, or loan 
programs or the rights or obligations of their recipients. The 
revisions have no budgetary effects and do not affect the rights or 
obligations of any recipients.
    (4) These regulatory changes directly implement statutory 
provisions and do not raise novel legal or policy issues.
    Overall, the impact of the rule is confined primarily 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 inconsistencies, materially alter any 
budgetary impacts, or raise novel legal or policy issues.

B. Regulatory Flexibility Act

    The Department of the Interior certifies that this document will 
not have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
It does not change current funding requirements or regulate small 
entities.

C. Small Business Regulatory Enforcement Fairness Act

    This interim final rule is not a major rule under 5 U.S.C. 804(2), 
the Small Business Regulatory Enforcement Fairness Act. It will not 
result in the expenditure by State, local, or Tribal governments, in 
the aggregate, or by the private sector of $100 million or more in any 
one year. Because this rule is limited to the probate of Indian trust 
estates, land, and assets within the United States and within Tribal 
communities, it will not result in a major increase in costs or prices 
for consumers, individual industries, Federal, State, or local 
government agencies, or geographic regions. Nor will this rule 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.

D. Unfunded Mandates Reform Act

    This interim final rule does not impose an unfunded mandate on 
State, local, or Tribal governments or the private sector of more than 
$100 million per year. The rule does not have a significant or unique 
effect on State, local, or Tribal governments or the private sector. A 
statement containing the information required by the Unfunded Mandates 
Reform Act (2 U.S.C. 1531 et seq.) is not required.

E. Takings (E.O. 12630)

    Under the criteria in Executive Order 12630, this interim final 
rule does not affect individual property rights protected by the Fifth 
Amendment nor does it involves a compensable ``taking.''

[[Page 7504]]

A takings implication assessment is not required.

F. Federalism (E.O. 13132)

    Under the criteria in Executive Order 13132, this interim final 
rule has no substantial direct effect 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. This rule implements a statutory change, in Public Law 110-
453, which establishes a Federal rule of descent and a presumption for 
interpretation of wills with regard to permanent improvements on trust 
or restricted land owned by a decedent. This Federal rule of descent 
and presumption for interpretation of wills will override any State 
rule of descent or presumption; however, the State (through the county 
courts) will continue to have jurisdiction to order the distribution of 
non-trust permanent improvements (in the absence of Tribal 
jurisdiction).
    Because the rule does not affect the Federal government's 
relationship to the States or the balance of power and responsibilities 
among various levels of government, it will not have sufficient 
federalism implications to warrant the preparation of a federalism 
summary impact statement.

G. Civil Justice Reform (E.O. 12988)

    This interim final rule complies with the requirements of Executive 
Order 12988. Specifically, this rule has been reviewed to eliminate 
errors and ambiguity and written to minimize litigation; and is written 
in clear language and contains clear legal standards.

H. Consultation With Indian Tribes (E.O. 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 DM 2, we have evaluated the potential effects on Federally 
recognized Indian Tribes and Indian trust assets and have identified 
potential effects. The Department engaged Tribal government 
representatives throughout development of the final rule that is being 
amended by this interim final rule. During those consultations, Tribal 
representatives requested one of the changes that Congress passed and 
that this interim final rule implements, specifically, that the consent 
requirements for purchase at probate be measured with reference to the 
decedent's ownership in the parcel, rather than with reference to the 
interest passing to the heir. Additional Tribal consultation regarding 
this rule is not required because it merely updates the regulations to 
reflect changes in ILCA/AIPRA made by Congress, amends internal agency 
procedures and makes minor technical changes.

I. Paperwork Reduction Act

    OMB Control No. 1076-0169 currently authorizes the collections of 
information contained in 25 CFR part 15. OMB Control No. 1076-0169 
authorizes 1,037,433 burden hours. This interim final rule clarifies an 
information collection requirement in section 15.203. This section 
requires Tribes to provide ``any information'' that BIA requires or 
requests to complete the probate file, and lists, as examples, a few 
specific items of information may be required or requested. The interim 
final rule adds to the specific items of information that may be 
required or requested a copy of the Tribal probate order, where one 
exists. This information collection requirement does not add to the 
number of responses, respondents, or type of information collected, and 
the time required to collect these additional items is covered by the 
1,037,433 burden hours authorized under OMB Control No. 1076-0169. As 
such, a new submission under the Paperwork Reduction Act is not 
required. If you have comments on this collection, please submit your 
comments to the person identified in the ADDRESSES section of this 
notice.

J. National Environmental Policy Act

    This interim final rule does not constitute a major Federal action 
significantly affecting the quality of the human environment.

K. Information Quality Act

    In developing this interim final rule we did not conduct or use a 
study, experiment, or survey requiring peer review under the 
Information Quality Act (Pub. L. 106-554).

L. Effects on the Energy Supply (E.O. 13211)

    This interim final rule is not a significant energy action under 
the definition in Executive Order 13211. A Statement of Energy Effects 
is not required.

M. Clarity of This Regulation

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ``COMMENTS'' section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you believe lists or tables would be 
useful, etc.

N. Public Availability of Comments

    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

O. Determination To Issue an Interim Final Rule With Immediate 
Effective Date

    This rule is being published as an interim final rule with request 
for comment, and without prior notice and comment, under 5 U.S.C. 
553(b)(A) and (B). Under section 553(b)(A), rules of agency procedure 
or practice, such as the clarification concerning evidence the agency 
must provide, do not require a notice of proposed rulemaking.
    Under section 553(b)(B), the Department for good cause finds that 
prior notice and comment are unnecessary because this rule amends the 
existing rule to conform with statutory changes and eliminates 
inconsistencies between the Department's probate regulations and ILCA/
AIPRA as amended by Public Law 110-453. Prior notice and comment are 
also unnecessary with respect to the balance of the changes effected by 
this rule because they are minor technical amendments.
    Under 5 U.S.C. 553(d)(3), the Department for good cause finds that 
this rule should be made effective upon publication in the Federal 
Register, rather than after the usual 30-day

[[Page 7505]]

period. This finding is based on the reasons explained above.
    We have requested comments on this interim final rule. We will 
review any comments received and, by a future publication in the 
Federal Register, address any comments received and confirm the interim 
final rule with or without change or initiate a proposed rulemaking.

List of Subjects

25 CFR Part 15

    Estates, Indians--law.

43 CFR Part 4

    Administrative practice and procedure, Claims, Indians, Lawyers.

43 CFR Part 30

    Administrative practice and procedure, Claims, Estates, Indians, 
Lawyers.

    For the reasons given in the preamble, the Department of the 
Interior amends chapter 1 of title 25 and subtitle A of title 43 of the 
Code of Federal Regulations as follows.

TITLE 25--INDIANS

Chapter 1--Bureau of Indian Affairs, Department of the Interior

PART 15--PROBATE OF INDIAN ESTATES, EXCEPT FOR MEMBERS OF THE OSAGE 
NATION AND THE FIVE CIVILIZED TRIBES

0
1. The authority citation for part 15 continues to read as follows:

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 372-74, 410, 2201 et 
seq.; 44 U.S.C. 3101 et seq.


0
2. Revise Sec.  15.1(a) to read as follows:


Sec.  15.1  What is the purpose of this part?

    (a) This part contains the procedures that we follow to initiate 
the probate of the estate of a deceased person for whom the United 
States holds an interest in trust or restricted land or trust 
personalty. This part tells you how to file the necessary documents to 
probate the estate. This part also describes how probates will be 
processed by the Bureau of Indian Affairs (BIA), and when probates will 
be forwarded to the Office of Hearings and Appeals (OHA) for 
disposition.
* * * * *

0
3. In Sec.  15.2, revise the definition of ``Summary probate 
proceeding'' and revise the definition of ``You or I'' to read as 
follows:


Sec.  15.2  What definitions do I need to know?

* * * * *
    Summary probate proceeding means the consideration of a probate 
file without a hearing. A summary probate proceeding may be conducted 
if the estate involves only an IIM account that did not exceed $5,000 
in value on the date of the decedent's death.
* * * * *
    You or I means an interested party, as defined herein, with an 
interest in the decedent's estate unless the context requires 
otherwise.

0
4. Revise Sec.  15.10 to read as follows:


Sec.  15.10  What assets will the Secretary probate?

    (a) We will probate only the trust or restricted land, or trust 
personalty owned by the decedent at the time of death.
    (b) We will not probate the following property:
    (1) Real or personal property other than trust or restricted land 
or trust personalty owned by the decedent at the time of death;
    (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 lands and assets owned by 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 who was a member of a Tribe other than the Five 
Civilized Tribes or Osage Nation.

0
5. In Sec.  15.12, revise paragraph (a) to read as follows:


Sec.  15.12  What happens if assets in an 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 owning trust or restricted 
property; and
    (2) Believes that an emergency exists and the assets in the estate 
may be significantly diminished or destroyed before the final decision 
and order of a judge in a probate case.
* * * * *

0
6. Revise Sec.  15.202(e) to read as follows:


Sec.  15.202  What items must the agency include in the probate file?

* * * * *
    (e) A certified inventory of trust or restricted land, including:
    (1) Accurate and adequate descriptions of all land; and
    (2) Identification of any interests that represent less than 5 
percent of the undivided interests in a parcel.
* * * * *

0
7. Revise Sec.  15.203 to read as follows:


Sec.  15.203  What information must Tribes provide BIA to complete the 
probate file?

    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, and a copy of Tribal probate orders where they 
exist.

TITLE 43--PUBLIC LANDS: INTERIOR

PART 4--DEPARTMENT HEARINGS AND APPEALS PROCEDURES

0
8. The authority citation for part 4 continues to read as follows:

    Authority: 5 U.S.C. 301, 503-504; 25 U.S.C. 9, 372-74, 410, 2201 
et seq.; 43 U.S.C. 1201, 1457; Pub. L. 99-264, 100 Stat. 61, as 
amended.


0
9. Revise Sec.  4.320 to read as follows:


Sec.  4.320  Who may appeal a judge's decision or order?

    Any interested party has a right to appeal to the Board if he or 
she is adversely affected by a decision or order of a judge under part 
30 of this subtitle:
    (a) On a petition for rehearing;
    (b) On a petition for reopening;
    (c) Regarding purchase of interests in a deceased Indian's estate; 
or
    (d) Regarding modification of the inventory of an estate.

0
10. Revise Sec.  4.324 to read as follows:


Sec.  4.324  How is the record on appeal prepared?

    (a) On receiving a copy of the notice of appeal, the judge whose 
decision is being appealed must notify:
    (1) The agency concerned; and
    (2) The LTRO where the original record was filed under Sec.  30.233 
of this subtitle.
    (b) If a transcript of the hearing was not prepared, the judge must 
have a transcript prepared and forwarded to the LTRO within 30 days 
after receiving a copy of the notice of appeal. The LTRO must include 
the original transcript in the record.
    (c) Within 30 days of the receipt of the transcript, the LTRO must 
do the following:
    (1) Prepare a table of contents for the record;
    (2) Make two complete copies of the original record, including the 
transcript and table of contents;

[[Page 7506]]

    (3) Certify that the record is complete;
    (4) Forward the certified original record, together with the table 
of contents, to the Board by certified mail or other service with 
delivery confirmation; and
    (5) Send one copy of the complete record to the agency.
    (d) While the appeal is pending, the copies of the record will be 
available for inspection at the LTRO and the agency.
    (e) Any party may file an objection to the record. The party must 
file his or her objection with the Board within 15 days after receiving 
the notice of docketing under Sec.  4.325.
    (f) For any of the following appeals, the judge must prepare an 
administrative record for the decision and a table of contents for the 
record and must forward them to the Board:
    (1) An interlocutory appeal under Sec.  4.28;
    (2) An appeal from a decision under Sec. Sec.  30.126 or 30.127 
regarding modification of an inventory of an estate; or
    (3) An appeal from a decision under Sec.  30.124 determining that a 
person for whom a probate proceeding is sought to be opened is not 
deceased.

PART 30--INDIAN PROBATE HEARINGS PROCEDURES

0
11. The authority citation for part 30 continues to read as follows:

    Authority: 5 U.S.C. 301, 503; 25 U.S.C. 9, 372-74, 410, 2201 et 
seq.; 43 U.S.C. 1201, 1457.


0
12. Revise Sec.  30.100(a) to read as follows:


Sec.  30.100  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    Sec.  Sec.   30.100 through 30.102.
 30.
(2) Claims against probate     Sec.  Sec.   30.140 through 30.148.
 estate.
(3) Commencement of probate..  Sec.  Sec.   30.110 through 30.115.
(4) Consolidation of           Sec.  Sec.   30.150 through 30.153.
 interests.
(5) Formal probate             Sec.  Sec.   30.210 through 30.246.
 proceedings before an
 administrative law judge or
 Indian probate judge.
(6) Probate of estates of      All sections except Sec.  Sec.   30.260
 Indians who die possessed of   through 30.274.
 trust or restricted property.
(7) Purchases at probate.....  Sec.  Sec.   30.160 through 30.175.
(8) Renunciation of interests  Sec.  Sec.   30.180 through 30.188.
(9) Summary probate            Sec.  Sec.   30.200 through 30.207.
 proceedings before an
 attorney decision maker.
(10) Tribal purchase of        Sec.  Sec.   30.260 through 30.274.
 certain property interests
 of decedents under special
 laws applicable to
 particular Tribes.
------------------------------------------------------------------------

* * * * *

0
13. In Sec.  30.101, add in alphabetical order a new definition of 
``Covered permanent improvement'' and revise the definitions of 
``Summary probate proceeding'' and ``You or I'' to read as follows:


Sec.  30.101  What definitions do I need to know?

* * * * *
    Covered permanent improvement means a permanent improvement 
(including an interest in such an improvement) that is:
    (1) Owned by the decedent at the time of death; and
    (2) Attached to a parcel of trust or restricted land that is also, 
in whole or in part, owned by the decedent at the time of death.
* * * * *
    Summary probate proceeding means the consideration of a probate 
file without a hearing. A summary probate proceeding may be conducted 
if the estate involves only an IIM account that did not exceed $5,000 
in value on the date of the death of the decedent.
* * * * *
    You or I means an interested party, as defined herein, with an 
interest in the decedent's estate unless a specific section states 
otherwise.

0
14. Revise Sec.  30.102 to read as follows:


Sec.  30.102  What assets will the Secretary probate?

    (a) We will probate only the trust or restricted land or trust 
personalty owned by the decedent at the time of death.
    (b) We will not probate the following property:
    (1) Real or personal property other than trust or restricted land 
or trust personalty owned by the decedent at the time of death;
    (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 lands and assets owned by a 
deceased member of the Five Civilized Tribes or Osage Nation who owned 
either a trust interest in land or a restricted interest in land 
derived from an individual Indian who was a member of a Tribe other 
than the Five Civilized Tribes or the Osage Nation.

0
15. Revise Sec.  30.110 to read as follows:


Sec.  30.110  When does OHA commence a probate case?

    OHA commences probate of an estate when OHA receives a probate file 
from the agency.

0
16. In Sec.  30.128, revise the introductory text and paragraph (a) to 
read as follows:


Sec.  30.128  What happens if an error in BIA's estate inventory is 
alleged?

    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.
    (a) Alleged inaccuracies may include, but are not limited to, the 
following:
    (1) Trust property should be removed from the inventory because the 
decedent executed a gift deed or 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 should be removed from the inventory because a 
deed through which the decedent acquired the property is invalid;
    (3) Trust property should be added to the inventory; and
    (4) Trust property included in the inventory is described 
improperly, although an erroneous recitation of acreage alone is not 
considered an improper description.
* * * * *

[[Page 7507]]


0
17. Revise Sec.  30.140 introductory text to read as follows:


Sec.  30.140  Where and when may I file a claim against the probate 
estate?

    You may file a claim against the estate of an Indian with BIA or, 
after the agency transfers the probate file to OHA, with OHA.
* * * * *

0
18. Revise Sec.  30.142 to read as follows:


Sec.  30.142  Will a judge authorize payment of a claim from the estate 
if the decedent's non-trust property was or is available?

    The judge will not authorize payment of a claim from the estate if 
the judge determines that the decedent's non-trust property was or is 
available to pay the claim. This provision does not apply to a claim 
that is secured by trust or restricted property.

0
19. Revise Sec.  30.143(b)(1) to read as follows:


Sec.  30.143  Are there any categories of claims that will not be 
allowed?

* * * * *
    (b) * * *
    (1) Has existed for such a period as to be barred by the applicable 
statute of limitations at the date of decedent's death;
* * * * *

0
20. In Sec.  30.151, revise the introductory text and paragraphs (a) 
and (b) to read as follows:


Sec.  30.151  May the devisees or eligible heirs in a probate 
proceeding consolidate their interests?

    The devisees or eligible heirs may consolidate interests in trust 
property already owned by the devisees or heirs or in property from the 
inventory of the decedent's estate, or both.
    (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 a 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;
    (ii) Interests of the devisees or eligible heirs in trust or 
restricted land which are not part of the decedent's trust inventory; 
and
    (iii) Interests of the decedent, the devisees, or eligible heirs in 
any covered permanent improvements attached to a parcel of trust or 
restricted land in 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.
    (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 Secretary's rules and requirements 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.
* * * * *

0
21. In Sec.  30.160, revise the introductory text to read as follows:


Sec.  30.160  What may be purchased at probate?

    An eligible purchaser may purchase, during the probate, all or part 
of the estate of a person who died on or after June 20, 2006.
* * * * *

0
22. Revise Sec.  30.163 to read as follows:


Sec.  30.163  Is consent required for a purchase at probate?

    (a) Except as provided in paragraphs (b) and (c) of this section, 
to purchase an interest in trust or restricted land at probate you must 
have the consent of:
    (1) The heirs or devisees of such interest; and
    (2) Any surviving spouse who receives a life estate under 25 U.S.C. 
2206(a)(2)(A) or (D).
    (b) If you are the Tribe with jurisdiction over the parcel 
containing the interest, you do not need consent under paragraph (a) of 
this section if the following four conditions are met:
    (1) The interest will pass by intestate succession;
    (2) The judge determines based on our records that the decedent's 
interest at the time of death was less than 5 percent of the entire 
undivided ownership of the parcel of land;
    (3) The heir or surviving spouse was not residing on the property 
at the time of the decedent's death; and
    (4) The heir or surviving spouse is not a member of your Tribe or 
eligible to become a member.
    (c) We may purchase an interest in trust or restricted land on 
behalf of the Tribe with jurisdiction over the parcel containing the 
interest. If we do so, we must obtain consent under paragraph (a) of 
this section, unless the conditions in paragraphs (b)(1) through (3) of 
this section are met.

0
23. Revise Sec.  30.167(a) to read as follows:


Sec.  30.167  How does OHA decide whether to approve a purchase at 
probate?

    (a) OHA will approve a purchase at probate if an eligible purchaser 
submits a bid in an amount equal to or greater than the market value of 
the interest.
    (1) In cases where the sale of the interest does not require 
consent under Sec.  30.163(b), OHA will sell the interest to the 
eligible purchaser.
    (2) In all other cases, OHA will sell the interest to the eligible 
purchaser selected by the applicable heir, devisee, or surviving 
spouse.
* * * * *

0
24. Revise Sec.  30.170(c) to read as follows:


Sec.  30.170  What may I do if I disagree with the judge's 
determination to approve a purchase at probate?

* * * * *
    (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 Sec.  
30.238 after the judge issues a decision under Sec.  30.235.


Sec. Sec.  30.236 through 30.245   [Redesignated as Sec. Sec.  30.237 
through 30.246]

0
25a. Redesignate Sec. Sec.  30.236 through 30.245 as Sec. Sec.  30.237 
through 30.246.

0
25b. Add Sec.  30.236 to read as follows:


Sec.  30.236  How are covered permanent improvements treated?

    (a) In an intestate case, under the Act, an interest in a covered 
permanent improvement attached to a parcel of trust or restricted land 
is treated as shown in the following table:

------------------------------------------------------------------------
                                         then the covered permanent
             If . . .                   improvement passes to . . .
------------------------------------------------------------------------
(1) A Tribal probate code          the person(s) designated in the
 approved under 25 CFR part 18      Tribal probate code to receive it.
 specifies how the covered
 permanent improvement will be
 handled.
(2) A consolidation agreement      the person(s) designated in the
 approved under subpart F of this   consolidation agreement to receive
 part specifies how the covered     it.
 permanent improvement will be
 handled.

[[Page 7508]]

 
(3) There is neither an approved   the recipient of the trust or
 Tribal probate code nor an         restricted interest in the parcel
 approved consolidation agreement   under the renunciation.
 that specifies how the covered
 permanent improvement will be
 handled, but there is a
 renunciation of the trust or
 restricted interest in the
 parcel under subpart H of this
 part.
(4) There is neither an approved   each eligible heir to whom the trust
 Tribal probate code nor an         or restricted interest in the parcel
 approved consolidation agreement   descends.
 that specifies how the covered
 permanent improvement will be
 handled, and there is no
 renunciation of the trust or
 restricted interest in the
 parcel under subpart H of this
 part.
------------------------------------------------------------------------

     (b) In a testate case, under the Act, an interest in a covered 
permanent improvement attached to a parcel of trust or restricted land 
is treated as shown in the following table:

------------------------------------------------------------------------
                                         then the covered permanent
             If . . .                   improvement passes to . . .
------------------------------------------------------------------------
(1) The will expressly states how  the person(s) designated in the will
 the covered permanent              to receive it.
 improvement will be handled.
(2) The will does not expressly    the person(s) designated in the will
 state how the covered permanent    to receive the trust or restricted
 improvement will be handled.       interest in the parcel.
------------------------------------------------------------------------

     (c) The provisions of the Act apply to a covered permanent 
improvement:
    (1) Even though it is not held in trust; and
    (2) Without altering or otherwise affecting its non-trust status.
    (d) The judge's decision will specifically direct the distribution 
only of the decedent's trust or restricted property, and not any non-
trust permanent improvement attached to a parcel of trust or restricted 
land. However, the judge:
    (1) Will include in the decision a general statement of the 
substantive law of descent or devise of permanent improvements; and
    (2) Can approve a consolidation agreement under subpart F of this 
part that includes a covered permanent improvement.

0
26. Revise newly redesignated Sec.  30.238(a) to read as follows:


Sec.  30.238  May I file a petition for rehearing if I disagree with 
the judge's decision in the formal probate hearing?

    (a) If you are adversely affected by the decision, you may file 
with the judge a written petition for rehearing within 30 days after 
the date on which the decision was mailed under Sec.  30.237.
* * * * *


Sec.  30.243  [Amended]

0
27. In newly redesignated Sec.  30.243, redesignate the second 
paragraph (a)(2) as paragraph (a)(3).

0
28. Revise Sec.  30.262(a)(1) to read as follows:


Sec.  30.262  When may a Tribe exercise its statutory option to 
purchase?

    (a) * * *
    (1) Within 60 days after mailing of the probate decision unless a 
petition for rehearing has been filed under Sec.  30.238 or a demand 
for hearing has been filed under Sec.  30.268; or
* * * * *

0
29. Revise Sec.  30.266(b)(3) to read as follows:


Sec.  30.266  When is a final decision issued?

* * * * *
    (b) * * *
    (3) A copy of the probate decision, together with a copy of the 
valuation report, must be distributed to all interested parties under 
Sec.  30.237.

    Dated: December 13, 2010.
Larry Echo Hawk,
Assistant Secretary--Indian Affairs.
    Dated: December 20, 2010.
Rhea S. Suh,
Assistant Secretary--Policy, Management and Budget.
[FR Doc. 2011-2896 Filed 2-9-11; 8:45 am]
BILLING CODE 4310-6W-P