Federal Register / Vol. 86, No. 4 / Thursday, January 7, 2021 / Proposed Rules 1037 

TABLE 1 TO § 1321.01—DEA MAILING ADDRESSES

Code of Federal Regulations Section—Topic DEA mailing address 

*******

DEA Registration Section 

1301.03—Procedures information request (controlled substances registration).

1301.18(c)—Research project controlled substance increase request ...

1301.51—Controlled substances registration modification request .........

Drug Enforcement Administration, Attn: Registration Section/DRR, P.O. 

Box 2639, Springfield, VA 22152. 

1301.52(b)—Controlled substances registration transfer request. 

1301.52(c)—Controlled substances registration discontinuance of business activities notification. 

1309.03—List I chemicals registration procedures information request. 

1309.61—List I chemicals registration modification request. 

* * * * * * * 

* * * * * 

Timothy J. Shea, 

Acting Administrator. 

[FR Doc. 2020–28532 Filed 1–6–21; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF THE INTERIOR 

Bureau of Indian Affairs 

25 CFR Part 15 

Office of the Secretary 

43 CFR Part 30 

[212A2100DD/AAKC001030/ 

A0A501010.999900 253G] 

RIN 1094–AA55 

American Indian Probate Regulations 

AGENCY: Bureau of Indian Affairs, Office 

of the Secretary, Interior. 

ACTION: Proposed rule. 

SUMMARY: The Department of the 

Interior (Department) is updating 

regulations governing probate of 

property that the United States holds in 

trust or restricted status for American 

Indians. Since the regulations were last 

revised in 2008, the Department 

identified opportunities for improving 

the probate process. These proposed 

revisions would allow the Office of 

Hearings and Appeals (OHA) to 

adjudicate probate cases more 

efficiently by, among other things, 

establishing an expedited process for 

small, funds-only estates, reorganizing 

the purchase-at-probate process so that 

estates may be closed more quickly, 

streamlining notice to co-owners who 

are potential heirs while adding 

electronic notice to all by website 

posting, and specifying which reasons 

justify reopening of closed probate 

estates. The proposed revisions would 

also enhance OHA’s processing by 

adding certainty as to how estates 

should be distributed when certain 

circumstances arise that are not 

addressed in the statute. 

DATES: Submit written comments by 

March 8, 2021. A Tribal consultation 

session will be held on February 9, 

2021, at 2 p.m. Eastern Time and a 

public hearing will be held on February 

11, 2021, at 2 p.m. Eastern Time (see 

Section V in the SUPPLEMENTARY

INFORMATION for details). 

ADDRESSES: You may submit comments 

by any one of the following methods: 

• Federal Rulemaking Portal: 

www.regulations.gov. The rule is listed 

under Agency Docket Number DOI– 

2019–0001. 

• Email: Tribes may email comments 

to: consultation@bia.gov. All others 

should email their comments to: 

comments@bia.gov. 

• Mail or Courier: Ms. Elizabeth 

Appel, Office of Regulatory Affairs & 

Collaborative Action, U.S. Department 

of the Interior, 1849 C Street NW, Mail 

Stop 4660 MIB, Washington, DC 20240. 

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 sent to an 

address other than those listed above 

will not be included in the docket for 

this rulemaking. Locations of the Tribal 

consultation session and public hearing 

are listed in Section V of this rule. 

FOR FURTHER INFORMATION CONTACT: 

Elizabeth K. Appel, Director, Office of 

Regulatory Affairs & Collaborative 

Action—Indian Affairs, 

Elizabeth.appel@bia.gov, (202) 273– 

4680. 

SUPPLEMENTARY INFORMATION: 

I. Executive Summary 

II. Background 

III. Proposed Resolution to Issues Identified 

in ANPRM and Response to Comments 

on the ANPRM 

A. Issue 1: Gaps in AIPRA Intestacy 

Distribution 

B. Issue 2: Overly Burdensome ‘‘Purchase 

at Probate’’ Process 

C. Issue 3: Notice to Co-Owners Who Are 

Potential Heirs 

D. Issue 4: Insufficient Trust Funds for 

Funeral Services 

E. Issue 5: No Regulatory Process for 

Exercise of ‘‘Tribal Purchase’’ Option 

F. Issue 6: Minor Estate Inventory 

Corrections 

G. Issue 7: Judicial Authority 

H. Issue 8: Indian Status Determinations 

I. Issue 9: Increase Opportunities To Use 

‘‘Renunciation’’ To Maintain Trust 

Status of Property 

J. Issue 10: Presumption of Death 

K. Issue 11: Reopening Closed Probate 

Cases 

L. Issue 12: Streamlining Process for Small 

Estates 

M. Issue 13: Descent of Off-Reservation 

Lands 

IV. Overview of Proposed Rule 

A. Summary of Proposed Changes 

B. Crosswalk of Current Regulation to 

Proposed Regulation 

V. Tribal Consultation and Public Hearing 

VI. Procedural Requirements 

A. Regulatory Planning and Review (E.O. 

12866 and 13563) 

B. Reducing Regulations and Controlling 

Regulatory Costs (E.O. 13771) 

C. Regulatory Flexibility Act 

D. Small Business Regulatory Enforcement 

Fairness Act 

E. Unfunded Mandates Act 

F. Takings (E.O. 12630) 

G. Federalism (E.O. 13132) 

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

I. Consultation With Indian Tribes (E.O. 

13175) 

J. Paperwork Reduction Act 

K. National Environmental Policy Act 

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

13211) 

M. Clarity of This Regulation 

N. Public Availability of Comments 


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I. Executive Summary 

This proposed rule would update 

regulations that address how OHA 

probates property that the United States 

holds in trust or restricted status for 

American Indians. In October 2019, the 

Department sought input on a number 

of issues in the existing probate 

regulations through an advance notice 

of proposed rulemaking (ANPRM). 84 

FR 58353 (October 31, 2019). The 

Department reviewed and considered 

the input and developed this proposed 

rule to improve the probate process. 

These proposed revisions would allow 

OHA to adjudicate probate cases more 

efficiently by, among other things, 

establishing an expedited process for 

small, funds-only estates, reorganizing 

the purchase-at-probate process so that 

estates may be closed more quickly, 

streamlining notice to co-owners who 

are potential heirs, and specifying 

which reasons justify reopening of 

closed probate estates. The proposed 

revisions would also enhance OHA’s 

processing by adding certainty as to 

how estates should be distributed when 

certain circumstances arise that are not 

addressed in the statute. 

II. Background 

The Department probates thousands 

of estates each year for American Indian 

individuals who own trust or restricted 

property. The Bureau of Indian Affairs 

(BIA), OHA, and the Office of the 

Special Trustee for American Indians 

(OST) each play a role in the probate 

process. BIA compiles the information 

necessary to build a case record (i.e., the 

probate file) and then transfers the 

record to OHA for a judge to adjudicate 

and issue a final probate decision. In 

accordance with the final probate 

decision, OST distributes trust funds 

from the estate and BIA distributes the 

trust or restricted real property. 

After the American Indian Probate 

Reform Act (AIPRA) was enacted in 

2004, the Department codified 

implementing regulations at 25 CFR part 

15 for the BIA and OST portions of the 

probate process and at 43 CFR part 30 

for the OHA adjudication process. 73 FR 

67255 (November 13, 2008); 76 FR 

45198 (July 28, 2011). In 2016 and 2017, 

BIA reached out to Tribes for input on 

how the probate process was working, 

hosting a Tribal listening session in 

Spokane, Washington, on June 27, 2016, 

hosting two Tribal consultation 

teleconference sessions on July 12 and 

13, 2016, and accepting written 

comment through January 4, 2017. More 

recently, in an effort to streamline the 

process and benefit Indian heirs and 

devisees, the Department identified 

current issues in the existing regulations 

and sought input, through an advance 

notice of proposed rulemaking 

(ANPRM), on where improvements may 

be made through regulatory change. 84 

FR 58353 (October 31, 2019). The 

Department received six comment 

submissions in response to the ANPRM 

and addresses them, issue by issue, in 

Section III. Section III also discusses 

how the proposed rule addresses issues 

identified in the ANPRM. Through the 

process of evaluating the responses and 

further examining the current 

regulations, the Department identified 

additional changes that could improve 

current processes, which the proposed 

rule also incorporates. Section IV 

provides an overview of all the changes 

this proposed rule would make to the 

current regulations. 

III. Proposed Resolution to Issues 

Identified in ANPRM and Response to 

Comments on the ANPRM 

A. Issue 1: Gaps in AIPRA Intestacy 

Distribution 

AIPRA sets out how a decedent’s 

estate should be distributed when a 

decedent dies without a will (i.e., 

intestate) at 25 U.S.C. 2206(a), but fails 

to account for how trust personalty 

(including trust funds) should be 

distributed under two circumstances 

when there are no eligible family heirs 

under AIPRA: (1) The estate contains 

trust personalty but no trust real 

property; and (2) more than one Tribe 

has jurisdiction over trust real property 

in the estate. No comments were 

received on this issue in response to the 

ANPRM. The proposed rule addresses 

this issue by adding a new § 30.507 to 

clarify how trust personalty is 

distributed in these circumstances. 

B. Issue 2: Overly Burdensome 

‘‘Purchase at Probate’’ Process 

AIPRA authorizes certain ‘‘eligible 

purchasers’’ to purchase trust and 

restricted interests in a parcel of land in 

the decedent’s estate under certain 

circumstances. See 25 U.S.C 2206(o). 

The current regulations set out this 

‘‘purchase at probate’’ process at 43 CFR 

part 30, subpart G, but the process has 

proven to be unwieldy because it 

requires the estate to be kept open 

indefinitely during the purchase at 

probate process and requires completion 

of the purchase at probate before issuing 

the final probate decision. This in turn 

requires OHA to make provisional 

determinations of heirs or devisees 

(creating the possibility of having to redo the already-lengthy process). The 

proposed rule addresses this issue by 

overhauling the purchase at probate 

process in a manner that eliminates the 

need to keep probate cases open while 

providing certainty as to who the heirs 

and devisees are and what interests they 

have consented to selling before 

proceeding with the purchase at 

probate. 

The Department received comments 

on two aspects of the purchase at 

probate issue, as follows: 

1. Notice to Co-Owners of a Purchase at 

Probate 

Current regulations provide that OHA 

will provide notice that it has received 

a written request to purchase at probate 

to certain parties by mail, and other 

parties by posting. See § 30.165. Coowners of property in the estate are 

eligible purchasers, and under the 

current regulations, receive notice of a 

request to purchase at probate through 

a posted notice. The ANPRM suggested 

instead requiring notice of a request to 

purchase at probate by mail to any coowners who have submitted prior notice 

to the BIA that they want to receive 

notice of probates involving specified 

allotments. 

The proposed rule’s approach to 

purchase at probate requires OHA to 

provide notice of a pending purchase 

request in the probate decision. See 

proposed § 30.408. The current 

regulations include a provision 

requiring OHA to mail or deliver notice 

of the probate decision to interested 

parties. See § 30.237. That provision is 

unchanged by the proposed rule, so 

interested parties will receive notice of 

the purchase at probate request in the 

probate decision; however, the proposed 

rule revises the definition of ‘‘interested 

party’’ to exclude anyone who may or 

will inherit solely as a co-owner of an 

allotment. See proposed § 30.101. 

Another proposed revision allows 

anyone who may or will inherit solely 

as a co-owner of an allotment to obtain 

notice by filing a request for such notice 

with regard to any allotment they 

identify. See proposed § 30.114 

The proposed rule would also 

eliminate posting of notices of purchase 

requests because posting adds 

significant time to the purchase process, 

while resulting in few, if any, co-owner 

requests to purchase. (Note, however, 

that notices of the hearing are still 

posted, so any interested co-owner may 

choose to participate in the hearing). 

The revisions would work to reserve 

notice to co-owners only for situations 

in which a co-owner has requested to 

receive notice, while continuing to meet 

due process requirements and reducing 

complexities in the probate process. 

Comment: The revision would 

eliminate the right of eligible purchasers 


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(co-owners) to notice when OHA 

receives a request to purchase at probate 

and would place the onus on the coowners to provide notice that they wish 

to be told of purchase offers. 

Response: Co-owners may purchase 

interests in the allotment at any time: 

Before probate (with the consent of the 

interest owner), during probate (through 

purchase at probate, only if consent is 

given by the heir or devisee who would 

otherwise inherit the interest and all 

requirements are met to permit a judge 

to approve the purchase at probate), or 

after probate (with the consent of the 

new interest owner). Given that the coowner may purchase interests in the 

allotment at any time, and must always 

obtain the consent of another party to do 

so, removing notice by posting of 

another purchase offer during probate 

does not harm the co-owner in any way. 

If the co-owner would like to receive 

notice of a purchase at probate offer on 

the allotment, the co-owner may request 

such notice and receive it directly, by 

mail. 

Comment: OHA must be required to 

notify co-owners by mail of an open 

period for registering their desire to be 

notified of a purchase at probate offer. 

Response: Establishing an open 

period for registering a desire to be 

notified would unnecessarily limit the 

time for co-owners to state their desire 

to be notified. At any time, co-owners 

may request to be notified in writing in 

the event any request to purchase is 

submitted for the property. 

Additionally, requiring notification to 

co-owners by mail of an open period for 

registering their desire to be notified of 

a purchase at probate offer would make 

the process less, rather than more, 

efficient. 

2. Elimination of Purchase at Probate of 

Minerals-Only Interests 

Allotments contain both surface 

interests and minerals interests. In some 

circumstances, the surface interests and 

minerals interests have been severed 

from each other. As a result, a 

decedent’s estate may contain real 

property interests that are referred to as 

‘‘minerals-only’’ interests. Purchasers 

sometimes seek to purchase those 

minerals-only interests from the estate. 

The current probate regulations state 

that fair market value will be 

determined by an appraisal or valuation 

method developed by the Secretary. See 

§ 30.264. The Department is able to 

provide the fair market value of a real 

property interest only via an appraisal. 

The Department is unable to perform 

appraisals for minerals-only interests at 

this time. 

Comment: Elimination of purchase at 

probate of mineral interests-only 

interests is adverse to and limits the 

rights of Tribes. Consult with Tribes and 

explain why valuation does not provide 

fair market value of minerals-only 

interest and why the ‘‘OVS valuation’’ 

cannot be the basis for an appraisal. 

Instead of eliminating purchase at 

probate, regulations could address 

whatever issues may have been 

identified with the OVS–DME 

valuations. 

Response: There is no statutory 

requirement for approval of a purchase 

at probate or providing anyone with a 

right to purchase at probate; rather, a 

judge decides in any given case whether 

to allow a purchase at probate. In cases 

where a judge decides to allow a 

purchase at probate, the statute requires 

that the judge ensure the purchase is for 

at least fair market value. In cases in 

which the mineral and surface estates 

are not separated, appraisals of the 

combined surface and mineral estate are 

relied upon for fair market value. In 

cases where there is no surface estate, 

the ‘‘OVS valuations’’ do not reflect the 

fair market value of the real property. 

Those valuations nearly always estimate 

the minerals-only interests at zero 

dollars; therefore, the proposed rule 

would provide that no interest of a 

minerals-only property may be 

purchased at probate on the basis of the 

value of the minerals themselves. The 

proposed rule does not entirely 

foreclose the opportunity to purchase a 

minerals-only interest at probate, 

however. The proposed rule would 

provide that purchase of a minerals-only 

real property interest may be considered 

for purchase at probate if sufficient 

evidence of the fair market value of the 

real property interest (rather than the 

value of the minerals themselves) is 

submitted. 

C. Issue 3: Notice to Co-Owners Who 

Are Potential Heirs 

The current regulations require OHA 

to provide all interested parties— 

including co-owners, when they are 

potential heirs—with mailed notice of 

probate proceedings. See § 30.114. Coowners may be potential heirs in one 

circumstance: If a decedent dies without 

any eligible person heirs as listed in 

AIPRA’s order of succession, and there 

is no Tribe with jurisdiction over the 

allotment, then a surviving co-owner of 

a trust or restricted interest in the 

allotment may potentially be an ‘‘heir’’ 

of last resort. The ANPRM suggested 

revising the regulations to state that 

potential heirs who may inherit solely 

based on their status as co-owners will 

not receive mailed notice of a probate 

proceeding, unless they have previously 

filed a request for notice with BIA or 

OHA. This proposed rule includes that 

provision at § 30.114 and provides that 

public notice will continue to be posted. 

Comment: Owners are entitled to due 

process in the form of notice sent by 

first class mail, but the ANPRM would 

instead require potential heirs to notify 

BIA of their wish to be notified when 

they become a potential heir. 

Response: This comment suggests a 

concern that a co-owner may be 

deprived of an opportunity to testify at 

hearing about his/her right to receive a 

share of the decedent’s estate if the coowner does not receive notice of the 

hearing by mail. Co-owners are only 

potential heirs in the circumstance in 

which there are no eligible family heirs 

and no Tribe with jurisdiction. Coowners rarely know the decedent or 

decedent’s family and therefore rarely 

have information to assist the judge 

with the determination of heirs. The 

only relevant testimony of most coowners would involve the legal question 

as to whether a Tribe has jurisdiction 

over property. If a co-owner has the 

resources to develop and present a legal 

argument as to whether a Tribe has 

jurisdiction over a property, it should 

not be a burden on that co-owner to take 

the step of notifying the BIA of a desire 

to be notified by mail of probates 

involving the property. Additionally, 

the proposed rule provides that notice 

will be posted on OHA’s website, and 

still provides for physical posting of 

notice of a probate hearing, unless 

physical posting was not possible due to 

one of the listed circumstances. 

Comment: The proposed change 

could result in unconstitutional takings 

and extinguishes the fiduciary 

responsibility of the Department to coowners. 

Response: Providing notice of a 

probate hearing through posting in lieu 

of mailing does not result in any takings 

because the co-owner is not at risk of 

losing any property interest. While the 

co-owner has an ownership interest in 

the allotment, the co-owner does not 

own the specific fractional property 

interest being probated. If the co-owner 

will be inheriting a share of that 

property interest (as the only eligible 

heir because there are no other heirs and 

there is not a Tribe with jurisdiction 

over the allotment), then the co-owner 

will receive the interest through the 

inheritance. A co-owner may have the 

option to purchase the interest— 

something co-owners are free to pursue 

at any time outside of the probate 

context—or the fractional interest the 

co-owner already owns may slightly 

increase. There are limited situations in 


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which co-owners may be considered 

potential heirs at the start of a case, but 

the property interest being probated 

ends up being distributed to another 

person or entity. For example, a will 

may be submitted at the hearing, a 

person may credibly claim to be the 

decedent’s child and heir, or the judge 

may rule that a Tribe does in fact have 

jurisdiction over an off-reservation 

allotment. In those situations, the judge 

retains the discretion, on a case-by-case 

basis, to mail notices and decisions to 

all affected co-owners. For these 

reasons, the proposed rule continues to 

take the approach of notifying most coowners by posting, rather than mail. 

(For other changes to posting in general, 

please see Section IV.A. ‘‘Summary of 

Proposed Changes’’ below). If concerns 

remain about notice to co-owners, the 

Department requests additional 

information to identify the concern 

underlying this comment, given that the 

co-owner will not be losing any rights. 

D. Issue 4: Insufficient Trust Funds for 

Funeral Services 

The current regulations allow 

whoever is responsible for making the 

funeral arrangements on behalf of the 

decedent’s family to obtain up to $1,000 

from the decedent’s Individual Indian 

Money (IIM) account to pay for funeral 

services. See 25 CFR 15.301. Due to the 

passage of time, this amount has proven 

to be insufficient. In addition, the 

current regulations require a balance of 

at least $2,500 in the decedent’s IIM 

account at the date of death in order for 

individuals to request the $1,000 

distribution. The Department sought, 

but did not receive, comments on this 

ANPRM issue. The proposed rule would 

allow individuals to request up to 

$5,000 from the decedent’s IIM account 

to pay for funeral services and would 

eliminate the requirement for the IIM 

account to have a specific balance as of 

the date of death. This change would 

recognize the increase in the cost of 

funeral services since the $1,000 limit 

was put in place, and would help to 

ensure that family members are able to 

pay such costs immediately. 

E. Issue 5: No Regulatory Process for 

Exercise of ‘‘Tribal Purchase’’ Option 

The ANPRM highlighted that there 

are currently no regulatory provisions 

implementing the AIPRA authority for a 

Tribe with jurisdiction to purchase an 

interest in trust or restricted land if the 

owner of the interest devises it to a nonIndian. See 25 U.S.C. 2205(c)(1)(A). The 

Department did not receive any 

comments on this section, and is not 

addressing it in this proposed rule, but 

plans to a consider addressing it in a 

future rulemaking. 

F. Issue 6: Minor Estate Inventory 

Corrections 

At times, BIA determines after a 

probate decision has been issued that 

trust or restricted property belonging to 

a decedent was either omitted from, or 

incorrectly included in, the inventory of 

an estate. Under the current regulations, 

such circumstances require multiple 

orders, including a modification order, 

from a judge. The current regulations 

also require that the modification order 

be appealable to the Interior Board of 

Indian Appeals (IBIA). As a result, it can 

take significant time to make minor 

estate inventory corrections to include 

omitted property. 

The ANPRM suggested certain 

revisions to improve probate process 

efficiency and reduce the amount of 

time for corrections of estate 

inventories, by authorizing BIA to make 

minor estate inventory corrections or to 

streamline the process that OHA follows 

before issuing an inventory modification 

order. One such streamlining measure 

could involve an heir or devisee being 

allowed to—prior to the exercise of an 

IBIA appeal option—request that an 

OHA judge reconsider a modification 

order, thus reducing the number of 

cases that might result in such an IBIA 

appeal. 

Comment: Do not allow BIA to make 

inventory corrections because the 

current regulations protect rights that 

were adjudicated through the original 

probate and the finality of a probate 

decision provides clarity and certainty. 

This change could result in a significant 

increase of OHA caseload as eligible 

parties appeal erroneous or conflicted 

decisions. It would be impossible to 

ensure equal standing for co-owners 

seeking redress from unilateral 

modifications. Also, ‘‘minor’’ and 

‘‘corrections’’ are undefined, and any 

corrections must be treated as a 

rehearing or reopening subject to 

advance notice to existing co-owners, 

and no administrative action (e.g., 

distributing revenue to prospective new 

co-owner) should be imposed by the 

agency pending final appeal decision.. 

Response: The proposed rule 

addresses the concerns expressed in the 

comments about BIA making inventory 

corrections by allowing BIA to petition 

OHA for a distribution order, but 

leaving the decision as to whether and 

how changes to an estate inventory 

affect distribution to the judge. The 

proposed rule would add a new section 

that specifically addresses typographical 

and other non-substantive errors for 

correction by OHA. See proposed 

§ 30.250. Proposed revisions also 

address how OHA may direct 

distribution of property that BIA 

identifies as belonging to an estate after 

a probate decision is issued, and how 

OHA may address property that BIA 

identifies as having been incorrectly 

included in an estate. Anyone who is 

adversely affected may challenge the 

OHA distribution order by filing an 

appeal through a reconsideration 

process, which is designed to be more 

expeditious than an appeal to IBIA. See 

proposed §§ 30.251–30.253. 

G. Issue 7: Judicial Authority 

The ANPRM suggested adding 

provisions to the regulations to 

explicitly allow the OHA judge to order 

both medical records and vital records 

from State and local entities as needed, 

and to issue interrogatories in cases 

involving will contests. 

Comment: Judges should be provided 

additional discovery powers to obtain 

basic facts about the cases. 

Response: The Department has 

determined that a more comprehensive 

overhaul of judicial authority is 

required, and will consider addressing 

these issues in a future rulemaking. 

H. Issue 8: Indian Status Determinations 

Under current probate regulations, a 

probate decision must determine the 

Indian status of every heir or devisee. 

But a determination of Indian status is 

often not necessary for a probate 

decision to be made. The ANPRM 

would require the probate decisions to 

determine the Indian status of an heir or 

devisee only when such a determination 

is necessary; for example, the 

determination of Indian status may be 

necessary in AIPRA cases involving a 

will and where the devisee is not a 

lineal descendant of the decedent. 

Comment: Require an Indian status 

determination only for those individuals 

who stand to inherit as an heir or 

devisee. 

Response: The proposed rule would 

limit determinations of Indian status to 

those situations where such 

determinations are necessary for a 

probate decision to be made. 

I. Issue 9: Increase Opportunities To Use 

‘‘Renunciation’’ To Maintain Trust 

Status of Property 

The current regulations allow an heir 

or devisee to renounce an inherited or 

devised interest in trust or restricted 

property, but provide that the 

renunciation must take place before the 

probate decision is made. (See 43 CFR 

part 30, subpart H). Once a probate 

decision is made, renunciation is not 

allowed. The current regulations allow 


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petitions for rehearing to be filed within 

30 days of a probate decision being 

made but fail to list renunciation among 

the bases for which an OHA judge may 

grant a rehearing. The ANPRM noted 

that, where renunciations are available 

at later stages, such as during a 

rehearing, then individuals could 

renounce to prevent property from going 

out of trust. The Department did not 

receive any comments on this issue. The 

proposed rule revises the renunciation 

provisions to allow for renunciations at 

three additional times after the issuance 

of a probate decision: Within 30 days 

from the mailing date of the decision; 

before the entry of an order on 

rehearing, if a petition for rehearing is 

pending; or within 30 days of the 

mailing date of the distribution order 

that provides the heir or devisee with 

additional property. 

J. Issue 10: Presumption of Death 

The probate process authorizes 

OHA—in some circumstances—to 

determine whether a person is deceased. 

Proof of death is not always available. 

To facilitate the decision-making 

process, the current regulations allow 

OHA to apply a presumption of death. 

The current rule is that such a 

presumption may be made if there has 

been no contact with the absent person 

for the last six years, dating back from 

the time of the hearing. The hearing 

does not always occur until well after a 

probate file is sent by BIA to OHA, so 

the ANPRM suggested revising the 

provisions in 43 CFR 30.124(b)(2), 

keeping the six-year rule but having it 

date back from the last date of known 

contact with the absent person. As 

needed for practicality, these revisions 

could include exceptions and/or rules 

about what ‘‘known contact’’ entails 

and/or how ‘‘known contact’’ is shown. 

Comment: Exclude word-of-mouth 

and social media postings from 

acceptable forms of contact, and limit to 

tamper-proof forms of written or 

timestamped recorded media that 

conform to requirement for ‘‘clear and 

convincing evidence’’ found at 43 CFR 

30.124. 

Response: The proposed rule does not 

exclude word-of-mouth and social 

media postings or otherwise limit what 

evidence of contact can be presented 

because it is the judge’s role to weigh 

the evidence and determine its 

credibility, as the judge would with any 

other evidence. The proposed rule lists 

specific evidence that will allow a judge 

to presume that a missing person has 

died and presume the date of death, 

including specific evidence showing 

that the person has been absent for at 

least 6 years. The proposed rule also 

specifies that the presumption may be 

rebutted by evidence that establishes 

that the person is still alive or explains 

the individual’s absence in a manner 

consistent with continued life rather 

than death. 

K. Issue 11: Reopening Closed Probate 

Cases 

In separate areas of the current 

regulations, a party may file a petition 

for rehearing or a petition for reopening 

(see 43 CFR 30.240 and 30.125). A 

petition for rehearing must be filed 

within 30 days of the probate decision 

and the requirements for presenting new 

evidence are specifically laid out. 

Petitions for reopening may be filed 

much later with few limitations on the 

reasons for a reopening. The ANPRM 

suggested revising the current 

regulations to: (1) Limit the ability of a 

party who did not use the opportunity 

to participate in an initial probate 

proceeding to later file a petition for 

reopening; and (2) in both rehearing and 

reopening proceedings, make clear the 

circumstances under which new 

evidence may be presented. 

Comment: Limit the number of times 

an interested party or BIA may petition 

for reopening. 

Response: The proposed rule includes 

limits on re-petitioning to ensure 

finality of probate proceedings. 

Comment: Reject limitations on 

petitions to reopen because individuals 

fail to participate in probates for 

legitimate reasons. Probate judges 

already have discretion to deny 

petitions to reopen where they see fit. 

Response: It is true that probate 

judges already have discretion to deny 

petitions to reopen where they see fit, 

but probate judges will usually deny 

petitions to reopen where an individual 

had the opportunity to participate in an 

initial probate proceeding and failed to 

avail himself or herself of that 

opportunity. If the individual received 

notice of the opportunity to participate 

in the probate proceeding, it is 

incumbent upon that individual to 

participate in the proceeding, notify 

OHA, or seek a rehearing within 30 

days. If, as the commenter notes, the 

individual had a ‘‘legitimate reason’’ for 

not participating, the individual should 

contact the court at that time or seek a 

rehearing within 30 days, rather than 

wait until after the probate decision has 

become final. At some point, there 

needs to be finality in each probate 

proceeding, and subjecting probate 

proceedings to being reopened 

undermines that finality. As such, 

reopening should be reserved for only 

the most necessary of circumstances. 

Comment: The rules are clear enough, 

but the agency manipulates or ignores 

the rules; clarify that the Department 

may not act on its own volition. 

Response: The rules are intended to 

establish consistency and predictability, 

but judges have the flexibility to make 

judgments within the framework of the 

rules. 

L. Issue 12: Streamlining Process for 

Small Estates 

Current regulations require estates 

with trust property or trust funds in 

excess of $5,000 to be adjudicated by an 

OHA decision maker through the formal 

probate process involving a hearing: a 

process that can be perceived as 

disproportionately time consuming for 

small estates. Current regulations also 

establish a summary probate process— 

which allows for disposition of the 

estate without a formal hearing, by a 

judge or ADM, based on the probate file 

alone—if the estate involves only cash 

of $5,000 or less on the date of death. 

The ANPRM suggested increasing the 

scope of estates that are subject to 

OHA’s summary process, which does 

not require a formal hearing (see 43 CFR 

part 30, subpart I), and/or determine 

what would be considered a small estate 

and, for estates within that definition, 

create a streamlined distribution scheme 

for such estates. 

Comment: Reject the change because 

eliminating hearings for simple estates 

would undermine due process. 

Response: Eliminating hearings for 

small estates that include only minimal 

funds and no land or trust personalty 

promotes due process by allowing faster 

resolution of pending probate cases. 

However, in recognition of this 

commenter’s concern regarding limiting 

hearings, the proposed rule takes a 

different approach from that suggested 

in the ANPRM. Rather than increasing 

the scope of estates subject to summary 

probate proceedings as suggested in the 

ANPRM, the proposed rule limits the 

estates that are subject to summary 

probate proceedings by lowering the 

dollar threshold (from $5,000 to $300), 

while further streamlining the summary 

probate process to allow estates to be 

handled more efficiently in the 

summary probate process. Like the 

current regulations, the proposed 

summary probate process allows for 

disposition of an estate by a judge or 

ADM based on the probate file, without 

a hearing. The proposal further 

streamlines the process by obviating the 

need for notice prior to issuance of the 

probate decision through elimination of 

the option to convert the proceedings to 

formal probate proceedings, elimination 

of consideration of claims against the 


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estate, and extending the deadline for 

renouncing to 30 days after the mailing 

of the probate decision. The probate 

decision under the proposed rule would 

then not only set out and explain the 

distribution, but provide instructions on 

how to renounce or seek review of the 

decision. This proposal also promotes 

due process by providing the 

opportunity for anyone adversely 

affected by the decision in a summary 

to file a request for review, but 

streamlines the process by allowing for 

reconsideration rather than de novo 

review. 

Comment: Develop, in consultation 

with Tribes, a separate process for 

‘‘micro estates’’ where value to be 

distributed is $100 or less, so value can 

be distributed in less than 60 days. 

Where multiple heirs, allow heirs to 

relinquish their interests with a onepage notarized attestation. 

Response: The proposed rule revises 

summary probate proceeding provisions 

to establish an expedited process for 

small estates consisting only of funds of 

$300 or less. This threshold amount was 

identified as a natural dividing point 

based on data reflecting the amounts of 

probate estates. 

Comment: Object to change based on 

sense of equal treatment. If changes are 

made, at a minimum, co-owners and 

potential heirs should be granted 

sufficient notice that this provision may 

be invoked only with an opportunity to 

object. 

Response: As proposed, all interested 

parties will receive notice of the 

decision and anyone adversely affected 

will have the opportunity to seek 

review. 

M. Issue 13: Descent of Off-Reservation 

Lands 

The ANPRM noted that the current 

regulations do not address the provision 

of AIPRA regarding descent of interests 

in trust or restricted lands that are 

located outside the boundaries of an 

Indian reservation and are not subject to 

the jurisdiction of a Tribe. See 25 U.S.C. 

2206(d)(2). The Department received no 

comments on this provision and will 

consider addressing this issue in a 

future rulemaking. 

IV. Overview of Proposed Rule 

The Department is proposing 

revisions to existing regulations that are 

unclear and/or create uncertainty and 

may lengthen the time it takes to 

process probates. The proposed rule 

aims to streamline probate processes, 

while providing due process, so that 

probate cases may be closed and 

distribution to heirs and devisees may 

occur more quickly. Closing the probate 

case sooner allows for distribution of 

property more quickly and creates 

certainty in the determination of the 

heirs and devisees. Each open probate 

case has the potential to create ripple 

effects of uncertainty as heirs and 

devisees become decedents themselves. 

The Department recognizes both the 

financial and emotional toll open 

probate cases take on families and, with 

this proposed rule, aims to provide 

certainty for families and future 

generations more expeditiously. 

A. Summary of Proposed Changes 

One way in which the proposed rule 

would accomplish the goal of 

streamlining the probate process is by 

overhauling the process and criteria for 

summary probate proceedings, to 

establish a process for very small 

estates: Estates that contain no interests 

in trust or restricted land and that 

include only funds (no other trust 

personalty) of $300 or less. The 

expedited process for these small estates 

will allow OHA to adjudicate the cases 

based on the probate file alone, while 

allowing anyone adversely affected by 

the decision a limited time to seek 

review. Other revisions that will help to 

expedite resolution of probate cases 

include: 

• A revision so that the judge does 

not need to determine the status of 

eligible heirs or devisees as Indian in 

every probate case, but only those in 

which that information is necessary; 

• A revision to eliminate the need to 

provide mailed notice to co-owners who 

would inherit only because of their 

status as co-owners if there were no 

eligible family heirs and no Tribe with 

jurisdiction; 

• A new provision allowing OHA to 

issue a correction order to correct nonsubstantive and typographical errors 

without reopening the probate case; 

• Revised processes for when it is 

discovered after issuance of a decision 

in a probate case that additional 

property must be added to an estate 

inventory or that property was 

incorrectly included in the estate 

inventory, including a process for 

challenging these types of decisions 

through reconsideration rather than 

appeal to the IBIA; 

• Revisions to allow heirs and 

devisees to renounce their interests at 

hearings (having their written 

declarations acknowledged before a 

judge) and allowing them to renounce 

not just prior to issuance of the probate 

decision, but also within 30 days of the 

decision, upon rehearing, or when 

additional property is added to the 

decedent’s estate. 

The proposed rule also includes 

revisions to provide that, in addition to 

mailing notice to heirs and devisees and 

others listed in § 30.114, OHA will post 

notice of formal probate proceedings on 

its website and physically post notice 

(unless physical posting is not possible 

due to one of the listed circumstances). 

It also proposes to eliminate physical 

posting for a hearing that will not be 

held in person and proposes to provide 

better targeted locations for physical 

posting. 

The current rule requires posting at 

the agency with jurisdiction over the 

trust or restricted parcels in the estate 

and at five or more conspicuous places 

in the vicinity of the designated place of 

hearing (which is generally located in 

the area of the identified heirs or 

devisees). The proposed rule would 

require OHA to post on its website, 

allowing notice to be available to all. 

These changes would accommodate the 

increased use of telephonic and other 

alternatives to in-person hearings, 

which are occurring and are anticipated 

to continue to occur as a result of 

technological advances. Posting notice 

on OHA’s website also establishes one 

location that is available for anyone to 

access regardless of residency. The 

proposed rule retains provisions for 

some physical postings in addition to 

mailed notice and the website posting. 

Specifically, the proposed rule allows 

for physical posting at the home agency 

and at the agency with jurisdiction over 

the trust or restricted parcels in the 

estate, if different from the home 

agency, but reduces from five to one the 

number of conspicuous places in the 

vicinity of the hearing that notice must 

be physically posted. The proposed rule 

further clarifies that if there is not an inperson hearing, then the posting in the 

conspicuous place in the vicinity of the 

hearing is not required. The proposed 

rule would also establish that OHA may 

proceed with a hearing even if physical 

posting was not possible due to one of 

the listed circumstances. The 

Department specifically invites 

comment on these changes, including: 

• Whether physical posting is 

effective in actually providing notice to 

potential parties who do not receive 

mailed notice; 

• Whether locations for posting other 

than the ones presented in the proposed 

rule would be more effective; 

• Whether posting would be more 

effective using any method(s) other 

than, or in addition to, those presented 

in the proposed rule; 

• Whether there should be physical 

postings in more than one conspicuous 

place in the vicinity of in-person 

hearings (and if so, how many); and 


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• Whether OHA should proceed with 

scheduling a hearing when it is only 

able to mail notices and post notices on 

its website, but the physical posting of 

additional notices is ‘‘not possible’’ (i.e., 

the agency office is closed or 

inaccessible or extenuating 

circumstances exist preventing 

personnel from physically posting) and 

whether the definition of ‘‘extenuating 

circumstances’’ is appropriate. 

The proposed rule would also clarify 

terminology and state what happens 

when various eventualities arise, which 

will help judges decisively address the 

issues and provide clarity for heirs and 

devisees throughout the process. For 

example, the proposed rule would 

delineate: 

• That there is one probate 

‘‘decision,’’ which results from the 

summary probate proceeding or formal 

probate proceeding, and all other 

written rulings issued by judges are 

‘‘orders,’’ such as an order on rehearing, 

an order on reopening, or a distribution 

order; 

• The evidence a judge may rely on 

to presume that an individual has died 

and their date of death; 

• How a judge will partition an 

allotment when a will attempts to 

divide an allotment into two or more 

distinct portions and devises at least 

one of those portions; 

• Who receives personal, mailed 

notice of a formal probate proceeding 

and how public notice is posted; 

• Rehearing and reopening processes 

and how they relate to each other; 

• The meanings of joint tenancy and 

tenants-in-common and how the 

presumption of joint tenancy and the 

anti-lapse provision each operate in the 

determination of heirs and devisees; 

• How trust personalty will be 

distributed when there are no eligible 

family heirs, and when there are either 

no land interests in the decedent’s estate 

or there are land interests within the 

jurisdiction of more than one Tribe. 

As mentioned in the prior section, the 

proposed rule would also overhaul the 

purchase at probate process. The current 

purchase at probate provisions are 

unwieldy in their fit with the formal 

probate proceedings and result in 

probate cases being kept open 

indefinitely while the purchase at 

probate process, including appraisals/ 

valuations, continues. Additionally, 

because the current provisions require 

the purchase at probate to be completed 

before the probate decision is issued, 

purchases at probate are completed 

based on provisional heirs and devisees, 

which causes uncertainty and increases 

the chance of having to redo the 

already-lengthy process. The proposed 

rule would instead sequence the 

purchase at probate process to allow the 

probate to be closed, while the purchase 

at probate continues, as follows: 

• The eligible purchaser may request 

to purchase at any time before the 

completion of the first probate hearing 

(including at the hearing) or within 30 

days of the distribution order mailing 

date, when requesting to purchase 

property newly added to the inventory. 

• If the request is still pending at the 

time the probate decision is issued and 

is not denied in the decision, OHA then 

includes in the probate decision (or 

reconsideration order if property was 

added) a list of all the purchase at 

probate requests that have been 

submitted, direction to BIA to obtain an 

appraisal/valuation of the interest, and 

direction to heirs or devisees on how to 

consent if they wish to do so. The 

property is distributed and any property 

subject to the purchase at probate 

request is conveyed with an 

encumbrance. 

• If consent is needed for the 

purchase, BIA holds off on ordering the 

appraisal/valuation until at least one 

heir or devisee has filed the written 

notification that the heir or devisee 

would consider selling the interest. 

• BIA obtains the appraisal/valuation. 

• BIA files a Petition to Complete 

Purchase at Probate, and OHA issues an 

Order to Submit Bids to all potential 

bidders that includes the fair market 

value. 

• Anyone who may be affected by the 

determination of the fair market value 

may object to the fair market value 

stated in the Order to Submit Bids by 

filing a written objection with OHA 

within 45 days. 

• OHA determines whether the bid is 

successful based on whether the bid was 

timely, equal to or greater than the fair 

market value, and, when consent is 

required for the purchase, the applicable 

heir, devisee, or surviving spouse 

accepts the bid. 

• OHA notifies parties of the 

successful bid. 

• The successful bidder pays for the 

interest purchased and the interest 

transfers. 

• Any interested party who is 

adversely affected by the judge’s order 

to approve or disapprove the purchase 

at probate may appeal to the IBIA 

within 30 days of the order. 

B. Crosswalk of Current Regulation to 

Proposed Regulation 

The following chart provides a highlevel crosswalk of the current regulatory 

provisions as compared to the proposed 

provisions. Sections not listed in the 

‘‘current’’ column are unaffected by this 

proposed rule. 

In 25 CFR part 15: 

Current § Proposed § Summary of proposed changes 

15.202 What items must the 

agency include in the probate 

file?.

15.202 What items must the 

agency include in the probate 

file?.

Redesignates paragraphs and adds a new paragraph (b) to establish 

a more limited universe of documents required to be included in 

estates that will be subject to a summary probate proceeding (i.e., 

estates with no land and $300 or less in funds). Also adds a new 

paragraph (a)(16) to address the need for the probate file to include valuation reports in the limited circumstances in which a special statute applies that requires the valuation report. 

15.301 May I receive funds from 

the decedent’s IIM account for funeral services?.

15.301 May I receive funds from 

the decedent’s IIM account for 

funeral services?.

Increases the amount that may be requested and approved for distribution from a decedent’s IIM account to pay for funeral expenses 

from $1,000 to $5,000. Also deletes requirement for the IIM account to contain at least $2,500 and clarifies that funds, if approved, are taken from the balance of the account as of the date of 

death. 

N/A .................................................. 15.404 What happens if BIA 

identifies additional property of a 

decedent after the probate decision is issued?.

New section. 


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Current § Proposed § Summary of proposed changes 

N/A .................................................. 15.405 What happens if BIA 

identifies that property was incorrectly included in a decedent’s inventory? 

New section. 

In 43 CFR part 30: 

Current § Proposed § Summary of proposed changes 

30.100 How do I use this part? 30.100 How do I use this part? Updates citations (no substantive change). 

30.101 What definitions do I need 

to know? 

30.101 What definitions do I 

need to know? 

Deletes definitions of ‘‘BLM’’ and ‘‘de novo review’’ because they are 

no longer used. 

Revises the definitions of ‘‘ADM’’ to delete reference to de novo review, ‘‘decision’’ to clarify that there is a single probate decision, 

‘‘Indian probate Judge’’ to reflect that the judges exercise delegated authority, ‘‘Interested party’’ to exclude those who may inherit solely as a co-owner, and ‘‘summary probate proceeding’’ to 

reflect the new approach to these proceedings. 

Adds definitions for ‘‘distribution order,’’ ‘‘extenuating circumstances,’’ 

‘‘home agency,’’ ‘‘joint tenancy,’’ ‘‘lineal descendant,’’ ‘‘order,’’ ‘‘Petition to Complete Purchase at Probate,’’ and ‘‘tenants in common.’’ 

30.114 Will I receive notice of the 

probate proceeding? 

30.114 Will I receive notice of 

the probate proceeding? 

Deletes provisions in current paragraph (b) regarding requesting a 

formal probate proceeding in lieu of a summary probate proceeding 

because, with the proposed revisions to the summary probate proceeding elsewhere in the proposed rule, this provision is no longer 

applicable. 

Revises paragraph (b) to provide that potential heirs who may inherit 

solely as co-owners of an allotment will not receive actual notice 

unless they have previously filed a request for notice with BIA or 

OHA. 

30.123 Will the judge determine 

matters of status and nationality? 

30.123 Will the judge determine 

matters of status and nationality? 

Adds ‘‘if relevant’’ so that a judge is not required to determine the 

status of eligible heirs or devisees as Indian if their status is not 

relevant in the probate case. 

30.124 When may a judge make 

a finding of death? 

30.124 When may a judge make 

a finding of death? 

Revises to list specific evidence that will support a presumption that 

an heir, devisee, or person for whom a probate case has been 

opened has died and the date of death. Also establishes what evidence will rebut the presumption. 

30.125 May a judge reopen a probate case to correct errors and 

omissions? 

30.129 May a judge reopen a 

probate case to correct errors 

and omissions? 

Redesignated to follow other section on correcting errors in ‘‘Judicial 

Authority’’ subpart. No substantive change. 

N/A 30.125 May a judge order that a 

property interest be partitioned 

as a result of a devise? 

New section. 

N/A 30.250 May a correction order be 

issued to correct typographical 

and other non-substantive errors? 

New section. 

30.126 What happens if property 

was omitted from the inventory of 

the estate? 

30.251 What happens if BIA 

identifies additional property of a 

decedent after a decision is 

issued? 

Clarifies what information BIA must provide to OHA in support of the 

petition to add the property, and provides that the judge will issue a 

distribution order of the additional property. 

30.127 What happens if property 

was improperly included in the inventory? 

30.252 What happens if BIA 

identifies that property was incorrectly included in a decedent’s inventory? 

Clarifies what information BIA must provide to OHA in support of the 

petition to remove the property, and provides that the judge will 

issue a distribution order that addresses any modifications to the 

distribution of the decedent’s property resulting from the correction 

of the inventory. 

N/A 30.253 What happens if a request for reconsideration of a 

distribution order is timely 

made? 

New section. Adds a process to allow interested parties to seek reconsideration of the distribution order. 

Subpart G—Purchase at Probate Subpart M—Purchase at Probate Revises this subpart overall to streamline the process for purchasing 

decedent’s interests at probate using the statutory authority in the 

American Indian Probate Reform Act. 

30.160 What may be purchased 

at probate? 

30.400 What may be purchased 

at probate? 

Adds a provision regarding purchase of minerals-only interests at 

probate. 

Deletes provision regarding timing of requesting a purchase at probate (addressed in proposed § 30.404). 

30.161 Who may purchase at probate? 30.401 Who may purchase at 

probate? 

No substantive change. 

30.162 Does property purchased 

at probate remain in trust or restricted status? 

30.402 Does property purchased 

at probate remain in trust or restricted status? 

No change. 


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Current § Proposed § Summary of proposed changes 

30.163 Is consent required for a 

purchase at probate? 

30.403 Is consent required for a 

purchase at probate? 

Adds that, to purchase any interest included in an approved consolidation agreement, the consent of the recipient of the consolidated 

interest is required. 

Adds a new paragraph (b) establishing procedures for heirs and devisees to refuse consent to a purchase at probate. 

Adds to the conditions in which a Tribe does not need consent to 

purchase that the interest is not part of an approved consolidation 

agreement. 

30.164 What must I do to purchase at probate? 30.404 How do I initiate a purchase at probate? 

30.405 When may I initiate a 

purchase at probate? 

Changes the deadline for filing a purchase request from before 

issuance of the final probate decision or order to instead before the 

end of the first probate hearing. 

N/A 30.406 May I withdraw my request to purchase at probate? New section. 

N/A 30.407 How will OHA address 

requests to purchase at probate? 

New section. 

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? 

30.408 What will OHA include in 

the probate decision or reconsideration order when a purchase at probate is pending? 

Revisions to incorporate the purchase at probate process into the 

final probate decision or reconsideration order, since that final decision and order are provided to the heirs or devisees, BIA, and anyone who has submitted a request to purchase. 

N/A 30.409 How will a pending purchase at probate request affect 

how the decedent’s property is 

distributed? 

New section. 

N/A 30.410 How will the purchase at 

probate process continue after 

the decision or reconsideration 

order is issued? 

New section. 

30.167 How does OHA decide 

whether to approve a purchase 

at probate? 

30.411 How will the interests to 

be purchased at probate be valued? 

30.416 How does OHA decide 

whether a bid is successful?.

Adds that BIA will obtain the appraisal or other fair market valuation 

and that any appraisal/valuation must be made on the basis of the 

fair market value as of the decedent’s date of death. 

Adds that the appraisal/valuation must state or include a certification 

that it is assessing the fair market value of the real property interest. 

Clarifies that OHA may hold a hearing and that the applicable heir, 

devisee, or surviving spouse may choose which bid to accept if 

multiple bids are submitted. 

30.168 How will the judge allocate 

the proceeds from a sale? 

(see 30.419, listed below) ............. Combines information on allocating proceeds with information on 

OHA issuing the order approving the sale. 

30.169 What may I do if I do not 

agree with the appraised market 

value? 

30.415 What may I do if I do not 

agree with the determination of 

fair market value in the Order to 

Submit Bids? 

Expands who may object to a fair market value determination to include any party who may be affected by the determination. 

Combines time for filing an objection (30 days) and filing supporting 

documentation (15 days) into a deadline of 45 days for both. 

Requires objecting party to provide copies of the objection and supporting documents to parties who have an interest in the purchase 

of the property. 

Provides that the judge may issue a Modified Order to Submit Bids. 

30.170 What may I do if I disagree with the judge’s determination to approve a purchase at 

probate? 

30.423 What may I do if I disagree with the judge’s determination to approve or deny a 

purchase at probate.

Replaces process for objecting to the judge with a process for appealing to IBIA. 

30.171 What happens when the 

judge grants a request to purchase at probate? 

30.412 What will OHA do when it 

receives BIA’s notification that 

an appraisal/valuation has been 

completed? 

30.417 How does the judge notify the parties whether there 

was a successful bid? 

Clarifies that OHA issues an Order to Submit Bids to all potential bidders, and that this occurs after the fair market value has been determined. 

N/A 30.413 Who are potential bidders? New section. 

N/A 30.414 What will be contained in 

the Order to Submit Bids? 

New section. 

30.172 When must the successful 

bidder pay for the interest purchased? 

30.418 When must the successful bidder pay for the interest 

purchased? 

No substantive change. 

30.173 What happens after the 

successful bidder submits payment? 

30.419 What happens after the 

successful bidder submits payment? 

Adds information on allocation of the proceeds of the sale. 

30.174 What happens if the successful bidder does not pay within 30 days? 30.420 What happens if the successful bidder does not pay 

within 30 days? 

No substantive change. 


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Current § Proposed § Summary of proposed changes 

30.175 When does a purchased 

interest vest in the purchaser? 

30.421 When does a purchased 

interest vest in the purchaser? 

No substantive change. 

N/A 30.422 What will happen to any 

lease income received or accrued from purchased land interests before the purchased interest vests in the purchaser? 

New section. 

N/A 30.424 When will the order approving or denying the purchase 

at probate become final? 

New section. 

Subpart H—Renunciation of Interest Subpart H—Renunciation of Interest.See below for specific sections. 

30.180 May I give up an inherited 

interest in trust or restricted property or trust personalty? 

30.180 May I give up an inherited interest in trust or restricted 

property or trust personalty? 

No change. 

30.181 How do I renounce an inherited interest? 30.181 When may I renounce a 

devised or inherited interest? 

30.186 How do I renounce an inherited interest? 

30.188 What steps will the judge 

take if I designate a recipient? 

Splits into two sections. Expands when someone may renounce to 

allow renunciation 30 days after the probate decision is mailed, before the entry of an order on rehearing, or within 30 days after 

mailing of the distribution for additional property. 

Expands the manner in which someone may renounce to allow acknowledgment before either a notary or a judge, so that someone 

may renounce in person at a hearing. 

N/A 30.182 Who may renounce an 

inherited interest on behalf of an 

heir or devisee who dies before 

the hearing? 

New section. Specifies who may renounce on behalf of an heir or 

devisee who dies before the hearing. 

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? 

30.183 Who may receive a renounced interest in trust or restricted land if the land will pass 

pursuant to a valid will? 

30.184 Who will receive a renounced interest in trust or restricted land if the land will pass 

by intestate succession? 

Reorganizes these sections to distinguish based on whether the decedent had a will or not. No substantive change. 

30.184 Who may receive a renounced interest in trust personalty? 30.185 Who may receive a renounced interest in trust personalty? Deletes paragraph (c) of the current section, which says the following, because it is not directly relevant to the probate process: 

‘‘The Secretary will directly disburse and distribute trust personalty 

transferred by renunciation to a person or entity other than those 

listed in paragraph (b) of this section.’’ 

30.185 May my designated recipient refuse to accept the interest? 30.189 May my designated recipient refuse to accept the interest? Adds a provision allowing the designated recipient the opportunity to 

refuse the interest. 

30.186 Are renunciations that predate the American Indian Probate 

Reform Act of 2004 valid? 

30.190 Are renunciations that 

predate the American Indian 

Probate Reform Act of 2004 

valid? 

No change. 

30.187 May I revoke my renunciation? 30.191 May I revoke my renunciation? Revised when a written renunciation becomes irrevocable to when 

the applicable order distributing the property becomes final, rather 

than when the judge enters the final order in the probate proceeding. 

30.188 Does a renounced interest 

vest in the person who renounced it? 

30.187 What happens if I do not 

designate any eligible individual 

or entity to receive the renounced interest? 

30.192 Does a renounced interest vest in the person who renounced it? 

Reorganizes to split into two sections. No substantive change. 

Subpart I—Summary Probate Proceedings Subpart I—Summary Probate Proceedings.See specific sections below. 

30.200 What is a summary probate proceeding? 30.200 What is a summary probate proceeding? Deletes that the supervising judge may determine whether the proceeding is conducted by a judge or ADM because this is an internal procedure. 

Changes the qualification for summary probate proceedings from 

funds-only estates with a value of $5,000 or less to funds-only estates with a value of $300 or less. 

Specifies what funds are considered in determining the value of the 

estate. 

30.201 What does a notice of a 

summary probate proceeding 

contain? 

30.206 What notice of the summary probate decision will the 

judge or ADM provide? 

Changes the notice provided to be notice of the summary probate 

decision and right to challenge the decision because the proposed 

rule eliminates the option for a hearing and claims renunciations 

from the summary probate proceeding. Deletes reference to renunciations because the option to renounce will now occur after the 

summary probate decision is issued. 


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Current § Proposed § Summary of proposed changes 

30.202 May I file a claim or renounce or disclaim an interest in 

the estate in a summary probate 

proceeding? 

30.201 May I file a claim in a 

summary probate proceeding? 

Revises to disallow claims in summary probate proceedings because 

the estate value is only $300 or less. 

N/A 30.202 What will happen when 

OHA receives the summary probate file? 

New section. Provides that OHA determines the distribution of estates under summary probate proceedings based on the information included in the probate file. 

N/A 30.203 What will happen if the 

funds in the estate are insufficient to provide each heir or 

devisee at least one cent? 

New section. Clarifies that if the funds in the estate are insufficient to 

provide all heirs or devisees with one cent, then the oldest heir or 

devisee receives all the funds. 

30.203 May I request that a formal probate proceeding be conducted instead of a summary 

probate proceeding? 

30.204 May I request that a formal probate proceeding be conducted instead of a summary 

probate proceeding? 

Revises to eliminate the option for requesting the summary probate 

be conducted as a formal probate proceeding because the estate 

value is so small. 

30.204 What must a summary 

probate decision contain? 

30.205 What must a summary 

probate decision contain? 

Reorganizes. 

Deletes reference to a proposed decision, because the judge decides 

the case without first releasing a proposed decision. 

Deletes references to claims. 

Adds that determination of ‘‘Indian’’ status is necessary only if relevant. 

Allows renunciation for 30 days after the mailing date of the decision 

(or within 30 days of an order on review, if applicable). 

Adds a statement that a formal probate proceeding will be initiated if 

BIA later identifies trust or restricted land that should have been included in the estate. 

30.205 How do I seek review of a 

summary probate proceeding? 

30.207 How do I seek review of 

a summary probate proceeding? 

Deletes reference to ‘‘de novo’’ review. 

Clarifies that BIA may also seek review. 

30.206 What happens after I file a 

request for de novo review? 

30.208 What happens after I file 

a request for review? 

Lengthens the time OHA has to notify the agency that prepared the 

probate file, all other affected agencies, and all interested parties of 

the request for review from 10 days to 30 days of receipt of the request for review. 

No longer requires a hearing on review. 

Clarifies that the judge may issue an order affirming, modifying, or 

vacating the summary probate decision. 

Lists who the judge must distribute the final order to and what it must 

include. 

Allows appeal to the IBIA. 

30.207 What happens if nobody 

files for de novo review? 

30.209 What will the judge or 

ADM do with the official record 

of the summary probate case? 

Provides that OHA transmits the official record back to the agency 

originating the probate and lists what will be included in the record. 

Deletes provision requiring OHA to send copies to other affected 

agencies. 

(Section specifying that the order becomes final after 30 days is in 

proposed § 30.206(b)). 

Subpart J—Formal Probate Proceedings Subpart J—Formal Probate Proceedings.See affected sections below. 

30.210 How will I receive personal 

notice of the formal probate proceeding? 

30.210 How will I receive personal notice of the formal probate proceeding? 

30.211 How will OHA provide 

public notice of the formal probate proceeding? 

Reorganizes to group all mailed (personal) notice into one section 

and all public notice into a separate section. 

Clarifies that the will and codicils will be mailed with the notice of the 

proceeding. (Section 30.114 lists who receives mailed notice of the 

hearing). 

Allows the posted notice that supplements the mailed notice to contain information for more than one hearing and specifies the minimum information that must be included for each. 

Adds requirement for OHA to post notice of all hearings on its 

website. 

Adds a provision for physical posting at the decedent’s home agency. 

Clarifies that a posting in the vicinity of the designated place of hearing will occur only if OHA designates a specific hearing location 

and reduces the number of conspicuous places for posting from 

five to one. 

Adds that OHA may proceed with a hearing without physical posting 

if physical posting is not possible due to one of the listed circumstances, including when the agency office is closed or inaccessible or extenuating circumstances prevent personnel from posting. 

(See definition of ‘‘extenuating circumstances,’’ which includes situations such as a natural disaster affecting the agency office or travel to the agency office or other event affecting the agency office’s 

ability to provide sustained continuous operations and services.) 


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Current § Proposed § Summary of proposed changes 

30.211 Will the notice be published in a newspaper? N/A ................................................. Deletes separate provision for publishing in a newspaper to give 

judge discretion to post notice in places other than the OHA 

website (including in a newspaper, if appropriate), for the purpose 

of increasing the chances of reaching individuals or entities with an 

interest in a probate case. 

30.238 May I file a petition for rehearing if I disagree with the 

judge’s decision in a formal probate hearing? 

30.238 May I file a petition for rehearing if I disagree with the 

judge’s decision in a formal probate hearing? 

Specifies that you must be an interested party to seek a rehearing 

and the basis for your request must be to correct a substantive 

error. Expands on what issues may be raised and what evidence 

may be relied upon in rehearing. 

30.239 Does any distribution of 

the estate occur while a petition 

for rehearing is pending? 

30.239 Does any distribution of 

the estate occur while a petition 

for rehearing is pending? 

No change. 

30.240 How will the judge decide 

a petition for rehearing? 

30.240 How will the judge decide 

a petition for rehearing? 

Clarifies that the judge will consider the petition for rehearing as a 

petition for reopening if not timely filed. 

Adds provision allowing the judge to summarily deny the petition 

based on certain deficiencies. 

30.241 May I submit another petition for rehearing? 30.241 May I submit another petition for rehearing? No substantive change. Moves information regarding the judge’s jurisdiction to § 30.242. 

30.242 When does the judge’s 

order on a petition for rehearing 

become final? 

30.242 When does the judge’s 

order on a petition for rehearing 

become final? 

Includes information on when the jurisdiction of the judge terminates. 

30.243 May a closed probate 

case be reopened? 

30.243 May a closed probate 

case be reopened? 

30.244 When must a petition for 

reopening be filed? 

30.245 What legal standard will 

be applied to reopen a case?.

30.246 What must be included in 

a petition for reopening? 

Deletes the chart and states by whom and the circumstances in 

which a closed probate case may be reopened. 

Splits provisions regarding deadlines for filing petitions to reopening 

to proposed § 30.244 to simplify the deadline to one year after discovery of the error. 

Clarifies that the 3-year threshold is important only with regard to the 

heightened legal standard that is applied to the petition to reopen 

after 3 years. 

Expands on what information must be included in a petition for reopening to justify reopening. 

N/A 30.247 What is not appropriate 

for a petition for reopening? 

New section. Clarifies what issues or objections a petition may not 

raise and what evidence a petition may not rely upon for a reopening, to encourage parties to address issues and bring evidence 

during the initial probate proceeding. 

30.244 How will the judge decide 

my petition for reopening? 

30.248 How will the judge decide 

my petition for reopening? 

Adds provision allowing the judge to summarily deny the petition 

based on certain deficiencies. 

30.245 What happens if the judge 

reopens the case? 

30.246 When will the decision on 

reopening become final? 

30.249 What happens when the 

judge issues an order on reopening? 

Combines two sections. No substantive change. 

Subpart K—Miscellaneous Subpart N—Miscellaneous ............ See affected sections below. 

30.250 When does the anti-lapse 

provision apply? 

30.500 When does the anti-lapse 

provision apply? 

Redesignated. No change. 

N/A 30.501 When is joint tenancy 

presumed? 

New section. Establishes that joint tenancy will be presumed where a 

testator devises the same interests to more than one person without specifying otherwise. 

N/A 30.502 How does a judge resolve conflicts between the antilapse provision and presumption 

of joint tenancy? 

New section. Clarifies that the judge will give priority to the presumption of joint tenancy, such that the share of the deceased devisee 

will go to the surviving devisees (rather than to the deceased devisee’s descendants). 

30.251 What happens if an heir or 

devisee participates in the killing 

of the decedent? 

30.503 What happens if an heir 

or devisee participates in the 

killing of the decedent? 

Redesignated. No change. 

30.252 May a judge allow fees for 

attorneys representing interested 

parties? 

30.504 May a judge allow fees 

for attorneys representing interested parties? 

Redesignated. No change. 

30.253 How must minors or other 

legal incompetents be represented? 

30.505 How must minors or 

other legal incompetents be represented? 

Redesignated. No change. 

30.254 What happens when a 

person dies without a valid will 

and has no heirs? 

30.506 When a decedent died intestate without heirs, what law 

applies to trust or restricted 

property? 

Deletes chart. Reorganizes based on whether the decedent died before or after the date of AIPRA’s enactment. Adds detail as to how 

interests will be distributed under the statute in each case, rather 

than just citing the statutory provisions. 

N/A 30.507 How will trust personalty 

be distributed if a decedent died 

intestate on or after June 20, 

2006, and the Act does not 

specify how the trust personalty 

should be distributed? 

New section. Specifies how trust personalty is distributed in the circumstance in which AIPRA applies but fails to state how trust personalty is distributed: If the decedent has no surviving spouse or 

eligible heirs or trust or restricted property over which one and only 

one Tribe has jurisdiction. 


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V. Tribal Consultation and Public 

Hearing 

The Department will be hosting the 

following Tribal consultation session to 

discuss this proposed rule: 

Date Time Location 

Tuesday, February 9, 2021 .......................................... 2 p.m.–5 p.m. Eastern Time ....................................... Call-in number: (800) 369–3356. 

Passcode: 8182564 

The Department will also be holding 

a public hearing for anyone for whom 

the Department holds property in trust 

or restricted status or for anyone else 

interested in this rulemaking, as 

follows: 

Date Time Location 

Thursday, February 11, 2021 ....................................... 2 p.m.–5 p.m. Eastern Time ....................................... Call-in number: (888) 790–3548. 

Passcode: 6643062 

Tribal consultation is reserved for 

officially designated representatives of 

federally recognized Tribes. Anyone 

who is not an officially designated 

representative of a federally recognized 

Tribe that is interested in this 

rulemaking should join the public 

hearing session only. 

VI. Procedural Requirements 

A. Regulatory Planning and Review 

(E.O. 12866 and 13563) 

Executive Order (E.O.) 12866 provides 

that the Office of Information and 

Regulatory Affairs (OIRA) at the Office 

of Management and Budget (OMB) will 

review all significant rules. OIRA has 

determined that this proposed rule is 

not significant. 

E.O. 13563 reaffirms the principles of 

E.O. 12866 while calling for 

improvements in the Nation’s regulatory 

system to promote predictability, to 

reduce uncertainty, and to use the best, 

most innovative, and least burdensome 

tools for achieving regulatory ends. The 

E.O. directs agencies to consider 

regulatory approaches that reduce 

burdens and maintain flexibility and 

freedom of choice for the public where 

these approaches are relevant, feasible, 

and consistent with regulatory 

objectives. E.O. 13563 emphasizes 

further that regulations must be based 

on the best available science and that 

the rulemaking process must allow for 

public participation and an open 

exchange of ideas. We have developed 

this proposed rule in a manner 

consistent with these requirements. This 

proposed rule is also part of the 

Department’s commitment under the 

Executive Order to reduce the number 

and burden of regulations. 

B. Reducing Regulations and 

Controlling Regulatory Costs (E.O. 

13771) 

E.O. 13771 of January 30, 2017, 

directs Federal agencies to reduce the 

regulatory burden on regulated entities 

and control regulatory costs. E.O. 13771, 

however, applies only to significant 

regulatory actions, as defined in Section 

3(f) of E.O. 12866. Therefore, E.O. 13771 

does not apply to this rule. 

C. Regulatory Flexibility Act 

The Department of the Interior 

certifies that this proposed rule 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.). This proposed rule 

affects only individuals’ estates and 

does not affect small entities. 

D. Small Business Regulatory 

Enforcement Fairness Act 

This proposed rule is not a major 

rulemaking under 5 U.S.C. 804(2), the 

Small Business Regulatory Enforcement 

Fairness Act. This proposed rule: 

(a) Does not have an annual effect on 

the economy of $100 million or more 

because this rule addresses only the 

transfer through probate of individuals’ 

property held in trust or restricted 

status. 

(b) Will not cause a major increase in 

costs or prices for consumers, 

individual industries, Federal, State, or 

local government agencies, or 

geographic regions because this rule 

affects only probates of individuals’ 

trust or restricted property. 

(c) Does not have significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

the ability of U.S.-based enterprises to 

compete with foreign-based enterprises 

because this rule affects only affects 

only probates of individuals’ trust or 

restricted property. 

E. Unfunded Mandates Reform Act 

This proposed 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 

proposed 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. 

F. Takings (E.O. 12630) 

This proposed rule does not affect a 

taking of private property or otherwise 

have taking implications under 

Executive Order 12630 because this 

rulemaking, if adopted, does not affect 

individual property rights protected by 

the Fifth Amendment or involve a 

compensable ‘‘taking.’’ A takings 

implication assessment is not required. 

G. Federalism (E.O. 13132) 

Under the criteria in section 1 of 

Executive Order 13132, this rule does 

not have sufficient federalism 

implications to warrant the preparation 

of a federalism summary impact 

statement because the rule affects only 

the probate of individuals’ trust or 

restricted property. A federalism 

summary impact statement is not 

required. 

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

This proposed rule complies with the 

requirements of Executive Order 12988. 

Specifically, this proposed rule: (a) 

Meets the criteria of section 3(a) 

requiring that all regulations be 

reviewed to eliminate errors and 

ambiguity and be written to minimize 

litigation; and (b) Meets the criteria of 


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section 3(b)(2) requiring that all 

regulations be written in clear language 

and contain clear legal standards. 

I. Consultation With Indian Tribes (E.O. 

13175) 

The Department of the Interior strives 

to strengthen its government-togovernment relationship with Indian 

Tribes through a commitment to 

consultation with Indian Tribes and 

recognition of their right to selfgovernance and Tribal sovereignty. We 

have evaluated this proposed rule under 

the Department’s consultation policy 

and under the criteria in Executive 

Order 13175 and have determined that 

it has substantial direct effects on 

federally recognized Indian Tribes 

because the proposed rule affects the 

probate of trust or restricted property 

held by individuals, many or most of 

whom are likely Tribal members. 

Information on Tribal consultation is 

provided in Section IV. 

J. Paperwork Reduction Act 

This proposed rule does not contain 

any new collection of information that 

requires approval from the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act of 1995 

(PRA), 44 U.S.C. 3501 et seq. OMB has 

previously approved the information 

collection requirements associated with 

compiling the probate file for an estate 

and assigned the information collection 

requirements OMB Control Number 

1076–0169 (expires 7/31/2021). We 

estimate the annual burden associated 

with this information collection to be 

617,486 hours per year. An agency may 

not conduct or sponsor, and a person is 

not required to respond to, a collection 

of information unless it displays a 

currently valid OMB control number. 

K. National Environmental Policy Act 

This proposed rule does not 

constitute a major Federal action 

significantly affecting the quality of the 

human environment. A detailed 

statement under the National 

Environmental Policy Act of 1969 

(NEPA) is not required because these are 

‘‘regulations . . . whose environmental 

effects are too broad, speculative, or 

conjectural to lend themselves to 

meaningful analysis and will later be 

subject to the NEPA process, either 

collectively or case-by-case.’’ 43 CFR 

46.210(i). We have also determined that 

the rulemaking does not involve any of 

the extraordinary circumstances listed 

in 43 CFR 46.215 that would require 

further analysis under NEPA. 

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

13211) 

This proposed 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 (section 1(b)(12)), and 12988 

(section 3(b)(1)(B)), and 13563 (section 

1(a)), 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 ADDRESSES

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, email 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. 

List of Subjects 

25 CFR Part 15 

Estates, Indians—law. 

43 CFR Part 30 

Administrative practice and 

procedure, Claims, Estates, Indians, 

Lawyers. 

For the reasons given in the preamble, 

the Department of the Interior proposes 

to amend part 15 of title 25 and part 30 

of title 43 of the Code of Federal 

Regulations as follows: 

Title 25—Indians 

Chapter I—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 

■ 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. 

■ 2. Revise § 15.202 to read as follows: 

§ 15.202 What items must the agency 

include in the probate file? 

(a) We will include the items listed in 

this section in the probate file, except as 

specified in paragraph (b) of this 

section. 

(1) The evidence of death of the 

decedent as provided under § 15.104. 

(2) A completed ‘‘Data for Heirship 

Findings and Family History Form’’ or 

successor form, certified by BIA, with 

the enrollment or other identifying 

number shown for each potential heir or 

devisee. 

(3) Information provided by potential 

heirs, devisees, or the Tribes on: 

(i) Whether the heirs and devisees 

meet the definition of ‘‘Indian’’ for 

probate purposes, including enrollment 

or eligibility for enrollment in a Tribe; 

or 

(ii) Whether the potential heirs or 

devisees are within two degrees of 

consanguinity of an ‘‘Indian.’’ 

(4) If an individual qualifies as an 

Indian only because of ownership of a 

trust or restricted interest in land, the 

date on which the individual became 

the owner of the trust or restricted 

interest. 

(5) A certified inventory of trust or 

restricted land, including: 

(i) Accurate and adequate 

descriptions of all land; and 

(ii) Identification of any interests that 

represent less than 5 percent of the 

undivided interests in a parcel. 

(6) A statement showing the balance 

and the source of funds in the 

decedent’s IIM account on the date of 

death. 

(7) A statement showing all receipts 

and sources of income to and 

disbursements, if any, from the 

decedent’s IIM account after the date of 

death. 

(8) Originals or copies of all wills, 

codicils, and revocations that have been 

provided to us. 

(9) A copy of any statement or 

document concerning any wills, 

codicils, or revocations the BIA returned 

to the testator. 


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(10) 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. 

(11) Claims of creditors that have been 

submitted to us under §§ 15.302 through 

15.305, including documentation 

required by § 15.305. 

(12) Documentation of any payments 

made on requests filed under the 

provisions of § 15.301. 

(13) All the documents acquired 

under § 15.105. 

(14) The record of each Tribal or 

individual request to purchase a trust or 

restricted land interest at probate. 

(15) 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. 

(16) Valuation reports for those 

interests to which the special 

circumstances listed in 43 CFR 30.264 

apply. 

(b) If the estate includes only cash and 

the total value of the estate does not 

exceed $300 on the date of death, 

including funds deposited and accruing 

on or before the date of death, then we 

will include only the following the 

probate file. 

(1) The evidence of death of the 

decedent as provided under § 15.104. 

(2) A completed ‘‘Data for Heirship 

Findings and Family History Form’’ or 

successor form, certified by BIA as an 

accurate summary of the information 

available to BIA that is relevant to the 

probate of the estate (this form should 

be completed with information 

provided by potential heirs, devisees, or 

Tribes to the greatest extent possible, 

but BIA is not required to obtain 

documentation in addition to that 

provided by those entities). 

(3) A statement showing the balance 

and the source of funds in the 

decedent’s IIM account on the date of 

death. 

(4) Certification that the decedent’s 

estate does not contain any interests in 

trust or restricted land. 

(5) Originals or copies of all wills, 

codicils, and revocations that have been 

provided to BIA. 

(6) A copy of any statement or 

document concerning any wills, 

codicils, or revocations the BIA returned 

to the testator. 

■ 3. In § 15.301, revise the section 

heading and paragraphs (a) and (c) to 

read as follows: 

§ 15.301 May funds for funeral services be 

paid from the decedent’s IIM account? 

(a) Before the probate case is 

submitted to OHA, you may request an 

amount of no more than $5,000 from the 

decedent’s IIM account if: 

(1) You are responsible for making the 

funeral arrangements on behalf of the 

family of a decedent who has an IIM 

account; and 

(2) You have an immediate need to 

pay for funeral arrangements before 

burial. 

* * * * * 

(c) In response to a request submitted 

under paragraph (a) of this section, we 

may approve, without the need for an 

order from OHA, costs of no more than 

$5,000 from the date of death IIM 

account balance that are reasonable and 

necessary for the burial services, taking 

into consideration: 

(1) The availability of non-trust funds, 

including availability of any Tribal 

contribution; and 

(2) Any other relevant factors. 

* * * * * 

■ 4. Add §§ 15.404 and 15.405 to read 

as follows: 

§ 15.404 What happens if BIA identifies 

additional property of a decedent after the 

probate decision is issued? 

If, after OHA issues the probate 

decision, BIA identifies additional trust 

or restricted property of a decedent that 

it had not already identified at the time 

of the decision, then BIA will submit a 

petition to OHA for an order directing 

distribution of the additional property. 

(a) The petition must identify the 

additional property and the source of 

that property (e.g., inheritance or 

approval of a deed) and must include 

the following: 

(1) A certified inventory describing 

the additional trust or restricted land, if 

applicable, or, if the additional property 

is trust personalty, documents verifying 

the balance and source of the additional 

trust personalty, and a statement that 

the inventory lists only the property to 

be added; 

(2) A copy of the decision, or 

modification or distribution order and 

corresponding inventory issued in the 

probate case from which the property 

was inherited by the decedent, if 

applicable; 

(3) A statement identifying each 

newly added share of any allotment that 

increases the decedent’s total share of 

the ownership interest of the allotment 

to 5 percent or more; 

(4) A copy of BIA’s notification to the 

Tribes with jurisdiction over the 

interests of the list of the additional 

interests that represent less than 5 

percent of the entire undivided 

ownership of each parcel (after being 

added to the decedent’s estate) under 

§ 15.401(b); and 

(5) A certification that all interested 

parties have been associated to the case 

and their names and addresses are 

current. 

(b) BIA may submit the petition at any 

time after issuance of the decision. 

(c) BIA must send a copy of the 

petition and all supporting 

documentation to each interested party 

at the time of filing and include 

certification of service. 

§ 15.405 What happens if BIA identifies 

that property was incorrectly included in a 

decedent’s inventory? 

If, after issuance of a decision, BIA 

identifies certain trust or restricted 

property or an interest therein that was 

incorrectly included in a decedent’s 

inventory, then BIA will submit a 

petition to OHA for an order notifying 

all heirs or devisees of the correction 

and addressing any changes in 

distribution of property resulting from 

the correction. 

(a) The petition must identify the 

property that it removed from the estate 

and explain why the property should 

not have been included, and must 

include the following: 

(1) A newly issued certified inventory 

describing the trust or restricted land 

remaining in decedent’s estate, if 

applicable; 

(2) A copy of the decision, or 

modification or distribution order and 

corresponding inventory issued in the 

probate case from which BIA discovered 

that the property was incorrectly 

included in the decedent’s estate, if 

applicable; 

(3) A statement identifying each 

property in the decedent’s estate that 

decreased to a total share of the 

ownership of the allotment to less than 

5 percent as a result of the removal of 

property from the estate; and 

(4) A certification that all interested 

parties have been associated to the case 

and their names and addresses are 

current. 

(b) BIA may submit the petition at any 

time after issuance of the decision. 

(c) BIA must send a copy of the 

petition and all supporting 

documentation to each interested party 

at the time of filing and include 

certification of service. 

Title 43—Public Lands: Interior 

PART 30—INDIAN PROBATE 

HEARINGS PROCEDURES 

■ 5. The authority citation for part 30 

continues to read as follows: 


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Authority: 5 U.S.C. 301, 503; 25 U.S.C. 9, 

372–74, 410, 2201 et seq.; 43 U.S.C. 1201, 

1457. 

■ 6. In § 30.100, revise paragraphs (a)(5) 

and (7) through (9) and (c)(2) and (3) to 

read as follows: 

§ 30.100 How do I use this part? 

(a) * * * 

For provisions relating to . . . consult . . . 

*******

(5) Formal probate proceedings before an administrative law judge or Indian probate judge ...... §§ 30.210 through 30.253. 

*******

(7) Purchases at probate ................................................................................................................ §§ 30.400 through 30.424. 

(8) Renunciation of interests ........................................................................................................... §§ 30.180 through 30.192. 

(9) Summary probate proceedings ................................................................................................. §§ 30.200 through 30.209. 

*******

* * * * * 

(c) * * * 

(2) Sections 30.400 through 30.424 

(purchases at probate); 

(3) Sections 30.183 through 30.188, 

except for §§ 30.186(a), (b)(2), and (d) 

and 30.187; 

* * * * * 

■ 7. Amend § 30.101 by: 

■ a. Revising the definition of ‘‘Attorney 

decision maker (ADM)’’; 

■ b. Removing the definitions for 

‘‘BLM’’ and ‘‘Decision or order (or 

decision and order)’’; 

■ c. Adding in alphabetical order the 

definition of ‘‘Decision’’; 

■ d. Removing the definition for ‘‘De 

novo review’’; 

■ e. Adding in alphabetical order 

definitions for ‘‘Distribution order’’, 

‘‘Extenuating circumstances’’, and 

‘‘Home agency’’; 

■ f. Revising the definitions of ‘‘Indian 

probate judge’’ and ‘‘Interested party’’; 

■ g. Adding in alphabetical order 

definitions for ‘‘Joint tenancy’’, ‘‘Lineal 

descendant’’, ‘‘Order’’, and ‘‘Petition to 

Complete Purchase at Probate’’; 

■ h. Revising the definition of 

‘‘Summary probate proceeding’’; and 

■ i. Adding in alphabetical order the 

definition ‘‘Tenants in common’’. 

The revisions and additions read as 

follows: 

§ 30.101 What definitions do I need to 

know? 

* * * * * 

Attorney decision maker (ADM) 

means an attorney with OHA who 

conducts summary probate proceedings. 

* * * * * 

Decision means a written document 

issued by a judge in a formal probate 

proceeding or by a judge or ADM in a 

summary probate proceeding making 

determinations as to heirs, wills, 

devisees, and the claims of creditors, 

and ordering distribution of trust or 

restricted land or trust personalty. 

* * * * * 

Distribution order means the OHA 

order distributing additional property 

that has been added to an estate under 

§ 30.251. 

* * * * * 

Extenuating circumstances means 

circumstances including, but not 

limited to, situations such as a natural 

disaster affecting the agency office or 

travel to the agency office or other event 

affecting the agency office’s ability to 

provide sustained continuous 

operations and services. 

* * * * * 

Home agency means the agency that 

serves the Tribe in which the decedent 

is a member or where the decedent’s IIM 

account originated. 

* * * * * 

Indian probate judge (IPJ) means an 

attorney with OHA, to whom the 

Secretary has delegated the authority to 

hear and decide Indian probate cases, 

pursuant to 25 U.S.C. 372–2. 

Interested party means: 

(1) Any potential or actual heir, 

except for potential or actual heirs who 

may or will inherit solely as co-owners 

of an allotment; 

(2) Any devisee under a will; 

(3) Any person or entity asserting a 

claim against a decedent’s estate; 

(4) Any Indian 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. 

* * * * * 

Joint tenancy means ownership by 

two or more persons of the same 

property, where the individuals, who 

are called joint tenants, share equal, 

undivided ownership of the property 

and have a right of survivorship such 

that upon the death of a joint tenant, the 

property descends to the other joint 

tenants by operation of law. 

* * * * * 

Lineal descendent means a blood 

relative of a person in that person’s 

direct line of descent. 

* * * * * 

Order means any written direction or 

determination, other than a decision, 

issued by a judge in a probate case, 

including a distribution order, an order 

on rehearing, an order on reopening, or 

a reconsideration order. 

* * * * * 

Petition to Complete Purchase at 

Probate means a petition BIA files with 

an appraisal or valuation to request that 

OHA complete the purchase at probate 

process. 

* * * * * 

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 $300 in value on the date 

of the death of the decedent. 

Tenants in common means two or 

more people who share ownership 

rights in a property, but whose 

ownership rights are divisible from each 

other and, when a tenant in common 

dies, the property descends to that 

tenant’s heirs or devisees rather than to 

the other tenant or tenants. 

* * * * * 

■ 8. In § 30.114, revise paragraph (b) to 

read as follows: 

§ 30.114 Will I receive notice of the probate 

proceeding? 

* * * * * 

(b) Potential heirs who may inherit 

solely as co-owners of an allotment will 

not be sent actual notice unless they 

have previously filed a request for 

notice with BIA or OHA. 

■ 9. In § 30.123, revise paragraph (a)(1) 

to read as follows: 

§ 30.123 Will the judge determine matters 

of status and nationality? 

(a) * * * 


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(1) If relevant, the status of eligible 

heirs or devisees as Indians; 

* * * * * 

■ 10. Revise § 30.124 to read as follows: 

§ 30.124 When may a judge presume the 

death of an heir, devisee, or person for 

whom a probate case has been opened? 

(a) When a person cannot be proven 

dead but evidence of death is needed, a 

judge may presume that an heir, 

devisee, or person for whom a probate 

case has been opened has died at a 

certain time if any of the following 

evidence is submitted: 

(1) A certified copy of an official 

report or finding by an agency or 

department of the United States, State, 

or Tribe that a missing person is dead 

or presumed to be dead. The judge will 

use the date of death found by the 

agency or department, if such a finding 

was made. If no such finding was made, 

unless other evidence is submitted 

showing an actual date of death, the 

judge will use the date on which the 

person was reported missing as the date 

of death. 

(2) A certified copy of an order from 

a court of competent jurisdiction that a 

missing person is dead or presumed to 

be dead. The judge will use the date of 

death found by the court, if such a 

finding was made. If no such finding 

was made, unless other evidence is 

submitted showing an actual date of 

death, the judge will use the date on 

which the person was reported missing 

as the date of death. 

(3) Signed affidavits or sworn 

testimony by those in a position to 

know that facts and other records show 

that the person has been absent from his 

or her residence for no apparent reason, 

or has no identifiable place of residence 

and cannot be located, and has not been 

heard from for at least 6 years. If there 

is no evidence available that the person 

continued to live after the date of 

disappearance or the date of last contact 

if the person has no identifiable place of 

residence, the judge will use the date 

the person disappeared or the date of 

last contact as the date of death. 

(4) When a person has been missing 

for less than 6 years but may be 

presumed dead due to an identified 

incident, such as drowning, fire, or 

accident, signed affidavits or sworn 

testimony from individuals who know 

the circumstances surrounding the 

occurrence leading to the person’s 

disappearance. The best evidence is 

statements from individuals who 

witnessed the occurrence or saw the 

missing person at the scene of the 

occurrence shortly before it happened. If 

there is no evidence available that the 

person continued to live after the date 

of the identified incident, the judge will 

use the date of the identified incident as 

the date of death. 

(5) When a person cannot be located 

by BIA or known surviving family 

members and was born at least 100 

years before the submission of a probate 

case to OHA, certification from BIA or 

signed affidavits or sworn testimony by 

those in a position to know the 

approximate date of birth. If there is no 

evidence available that the person 

continued to live after reaching the age 

of 100, the judge will use the date that 

is 100 years after the date of birth as the 

date of death. 

(b) A presumption of death made 

based on paragraph (a) of this section 

can be rebutted by evidence that 

establishes that the person is still alive 

or explains the individual’s absence in 

a manner consistent with continued life 

rather than death. 

§ 30.125 [Redesignated as § 30.129] 

■ 11. Redesignate § 30.125 as § 30.129. 

■ 12. Add a new § 30.125 to read as 

follows: 

§ 30.125 May a judge order that a property 

interest be partitioned as a result of a 

devise? 

(a) A judge may order a property 

interest to be partitioned if: 

(1) A will attempts to divide an 

allotment into two or more distinct 

portions and devises at least one of 

those portions; 

(2) The decedent was the sole owner 

of the allotment; 

(3) The allotment is held entirely in 

trust or restricted status; and 

(4) The devise describes the portions 

of the allotment in a manner that allows 

the judge to readily ascertain which 

portion of the allotment descends to 

each intended devisee. 

(b) If the requirements of paragraph 

(a) of this section are not met, the judge 

may find that a devise of a portion of an 

undivided allotment fails. 

§§ 30.126 and 30.127 [Removed and 

Reserved] 

■ 13. Remove and reserve §§ 30.126 and 

30.127. 

Subpart G [Removed and Reserved] 

■ 14. Remove and reserve subpart G. 

■ 15. Revise subpart H to read as 

follows: 

Subpart H—Renunciation of Interest 

Sec. 

30.180 May I give up an inherited interest 

in trust or restricted property or trust 

personalty? 

30.181 When may I renounce a devised or 

inherited interest? 

30.182 Who may renounce an inherited 

interest on behalf of an heir or devisee 

who dies before the hearing? 

30.183 Who may receive a renounced 

interest in trust or restricted land if the 

land will descend pursuant to a valid 

will? 

30.184 Who may receive a renounced 

interest in trust or restricted land if the 

land will descend by intestate 

succession? 

30.185 Who may receive a renounced 

interest in trust personalty? 

30.186 How do I renounce an inherited 

interest? 

30.187 What happens if I do not designate 

any eligible individual or entity to 

receive the renounced interest? 

30.188 What steps will the judge take if I 

designate a recipient? 

30.189 May my designated recipient refuse 

to accept the interest? 

30.190 Are renunciations that predate the 

American Indian Probate Reform Act of 

2004 valid? 

30.191 May I revoke my renunciation? 

30.192 Does a renounced interest vest in the 

person who renounced it? 

§ 30.180 May I give up an inherited interest 

in trust or restricted property or trust 

personalty? 

You may renounce an inherited or 

devised interest in trust or restricted 

property, including a life estate, or in 

trust personalty if you are 18 years or 

older and not under a legal disability. 

§ 30.181 When may I renounce a devised 

or inherited interest? 

(a) If the judge has not yet issued a 

decision, you may renounce a devised 

or inherited interest at any time before 

the issuance of the decision. 

(b) If the judge has issued a decision, 

you may renounce a devised or 

inherited interest in any property 

distributed by the decision: 

(1) Within 30 days from the mailing 

date of the decision; or 

(2) Within 30 days of the order on 

review, in a summary probate 

proceeding in which a request for 

review has been filed; or 

(3) Before the entry of an order on 

rehearing, in a formal probate 

proceeding in which a petition for 

rehearing is pending. 

(c) You may renounce a devised or 

inherited interest that is added to the 

decedent’s estate after the decision is 

issued pursuant to § 30.251 within 30 

days of mailing the distribution order. 

(d) Once the order on rehearing is 

issued, you may not renounce a devised 

or inherited interest that was distributed 

by the decision. 

§ 30.182 Who may renounce an inherited 

interest on behalf of an heir or devisee who 

dies before the hearing? 

If an individual heir or devisee dies 

before the hearing, a renunciation may 


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be made on his or her behalf by any of 

the following, if the judge makes a 

determination that the renunciation is 

in the best interest of the parties: 

(a) An individual appointed by a 

probate court to act on behalf of his or 

her private (i.e., non-Federal-trust) 

estate, including but not limited to a 

personal representative, administrator, 

or executor; or 

(b) Someone appointed by the judge 

with the express approval of all the 

heirs or devisees of the deceased heir or 

devisee. 

§ 30.183 Who may receive a renounced 

interest in trust or restricted land if the land 

will descend pursuant to a valid will? 

A devisee may renounce an interest in 

trust or restricted land in favor of any 

one or more of the following: 

(a) A lineal descendant of the testator; 

(b) A person who owns an undivided 

trust or restricted interest in the same 

parcel; 

(c) The Tribe with jurisdiction over 

the interest; or 

(d) Any Indian. 

§ 30.184 Who may receive a renounced 

interest in trust or restricted land if the land 

will descend by intestate succession? 

(a) If the interest in trust or restricted 

land represents 5 percent or more of the 

entire undivided ownership of the 

parcel, you may renounce that interest 

in favor of one or more of the following: 

(1) Eligible heirs of the decedent; or 

(2) The Tribe with jurisdiction over 

the interest. 

(b) If the interest in the trust or 

restricted land represents less than 5 

percent of the entire undivided 

ownership of the parcel, you may 

renounce that interest in favor of only 

one person or entity listed in paragraph 

(a) of this section, or to one Indian 

person related to you by blood. 

§ 30.185 Who may receive a renounced 

interest in trust personalty? 

You may renounce an interest in trust 

personalty in favor of any person or 

entity. 

§ 30.186 How do I renounce an inherited 

interest? 

To renounce an interest under 

§ 30.180, you must file with the judge a 

written declaration specifying the 

interest to be renounced. The 

declaration must be signed by you and 

acknowledged before a notary or judge. 

(a) In your declaration, you may retain 

a life estate in a specified interest in 

trust or restricted land and renounce the 

remainder interest, or you may 

renounce the complete interest. 

(b) If you renounce an interest in trust 

or restricted land, you may either: 

(1) Designate an eligible person or 

entity meeting the requirements of 

§ 30.182 or § 30.183 as the recipient; or 

(2) Renounce without making a 

designation. 

(c) If a distribution order to add 

property to the decedent’s estate is 

issued, you may renounce an inherited 

interest in the property to be added by 

notifying the judge in writing of your 

intent to renounce the interest within 30 

days of the mailing date of the 

distribution order. 

§ 30.187 What happens if I do not 

designate any eligible individual or entity to 

receive the renounced interest? 

If you do not designate any individual 

or entity to receive the renounced 

interest, or if you designate an 

individual or entity who is not eligible 

to receive the renounced interest, the 

interest will descend to the decedent’s 

heirs or devisees as if you predeceased 

the decedent. 

§ 30.188 What steps will the judge take if 

I designate a recipient? 

If you choose to renounce your 

interests in favor of a designated 

recipient, the judge will determine 

whether the designated recipient is 

eligible to receive the interest. If the 

designated recipient is eligible, the 

judge must notify the designated 

recipient of the renunciation. 

§ 30.189 May my designated recipient 

refuse to accept the interest? 

Yes. Your designated recipient may 

refuse to accept the interest, in which 

case the renounced interest will 

descend to the devisees or heirs of the 

decedent as if you had predeceased the 

decedent. When the judge notifies the 

designated recipient of the renunciation, 

the judge will specify a deadline for the 

recipient to file a written refusal to 

accept the interest. If no written refusal 

is received before the deadline, the 

interest will descend to the designated 

recipient. 

§ 30.190 Are renunciations that predate 

the American Indian Probate Reform Act of 

2004 valid? 

Any renunciation filed and included 

as part of a probate decision or order 

issued before October 27, 2004, the 

effective date of the American Indian 

Probate Reform Act of 2004, remains 

valid. 

§ 30.191 May I revoke my renunciation? 

A written renunciation is irrevocable 

when the applicable order distributing 

the renounced property becomes final. 

§ 30.192 Does a renounced interest vest in 

the person who renounced it? 

No. An interest in trust or restricted 

property renounced under this subpart 

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. 

■ 16. Revise subpart I to read as follows: 

Subpart I—Summary Probate Proceedings 

Sec. 

30.200 What is a summary probate 

proceeding? 

30.201 May I file a claim in a summary 

probate proceeding? 

30.202 What will happen when OHA 

receives the summary probate file? 

30.203 What will happen if the funds in the 

estate are insufficient to provide each 

heir or devisee at least one cent? 

30.204 May I request that a formal probate 

proceeding be conducted instead of a 

summary probate proceeding? 

30.205 What must a summary probate 

decision contain? 

30.206 What notice of the summary probate 

decision will the judge or ADM provide? 

30.207 How do I seek review of a summary 

probate proceeding? 

30.208 What happens after I file a request 

for review? 

30.209 What will the judge or ADM do with 

the official record of the summary 

probate case? 

Subpart I—Summary Probate 

Proceedings 

§ 30.200 What is a summary probate 

proceeding? 

(a) A summary probate proceeding is 

the disposition of a probate case without 

a formal hearing, which is conducted on 

the basis of the probate file received 

from the agency. A summary probate 

proceeding may be conducted by a 

judge or an ADM. 

(b) A decedent’s estate may be 

processed summarily if the estate 

involves only funds in an IIM account 

and the total value of the estate does not 

exceed $300 on the decedent’s date of 

death, including: 

(1) Funds deposited into the IIM 

account on or before the date of death; 

and 

(2) Funds accrued on or before the 

date of death. 

§ 30.201 May I file a claim in a summary 

probate proceeding? 

No. Claims may not be filed in 

summary probate proceedings. 

§ 30.202 What will happen when OHA 

receives the summary probate file? 

When OHA receives a summary 

probate file from BIA under 25 CFR 

15.202(b), OHA will determine the 

distribution of the estate based on the 

information included in the probate file 


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and issue a summary probate decision 

directing distribution of the estate. 

§ 30.203 What will happen if the funds in 

the estate are insufficient to provide each 

heir or devisee at least one cent? 

If the funds in the estate are 

insufficient to provide each of the heirs 

or devisees at least one cent, all of the 

funds will be paid to the oldest heir or 

devisee, whichever is applicable. 

§ 30.204 May I request that a formal 

probate proceeding be conducted instead 

of a summary probate proceeding? 

No. Formal probate proceedings are 

available only for estates that contain 

trust or restricted land or contain trust 

personalty in an amount greater than 

$300. 

§ 30.205 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 an order for distribution. Each 

decision must include the following: 

(a) The name, birth date, and 

relationship to the decedent of each heir 

or devisee; 

(b) A statement as to whether the heir 

or devisee is eligible to hold property in 

trust status and, if relevant, a statement 

of whether the heir or devisee is 

‘‘Indian’’ for purposes of the Act; 

(c) If the case involves a will, a 

statement approving or disapproving the 

will, interpreting provisions of an 

approved will as necessary, and 

describing the share each devisee is to 

receive under an approved will; 

(d) In intestate cases, citation to the 

law of descent and distribution under 

which the summary probate decision is 

made, and description of the share each 

heir is to receive; 

(e) A statement advising all interested 

parties, other than potential claimants, 

that they have a right to seek review 

under § 30.207 and that, if they fail to 

do so, the summary probate decision 

will become final 30 days after it is 

mailed; 

(f) Notice to the heirs or devisees that 

each may renounce his or her right to 

inherit the funds in favor of one or more 

individuals or entities. The heir or 

devisee will be ordered to submit the 

renunciation within 30 days of the 

mailing date of the decision or within 

30 days of an order on review if a 

request for review is filed by any party; 

(g) A statement that the findings in a 

summary probate decision may not be 

used to determine the decedent’s heirs 

or devisees for distribution of any trust 

or restricted land that may be added to 

the decedent’s estate at a later time. If 

BIA identifies trust or restricted land in 

the decedent’s estate after the 

completion of the summary probate 

process, BIA should file a petition for 

reopening and include all documents 

required for a formal probate proceeding 

pursuant to 25 CFR 15.202(a); and 

(h) The signature of the judge or ADM 

and date of the probate decision. 

§ 30.206 What notice of the summary 

probate decision will the judge or ADM 

provide? 

When the judge or ADM issues a 

decision in a summary probate 

proceeding, the judge or ADM must 

mail or deliver a notice of the decision, 

together with a copy of the decision, to 

each affected agency and to each 

interested party. 

(a) The notice must include a 

statement that interested parties who are 

adversely affected have a right to file a 

request for review with the judge or 

ADM within 30 days of the mailing date 

of the decision. 

(b) The decision will become final at 

the end of the 30-day period, unless a 

timely request is filed. 

§ 30.207 How do I seek review of a 

summary probate proceeding? 

(a) If you are adversely affected by the 

written decision in a summary probate 

proceeding, you may seek review of the 

summary probate decision. To do this, 

you must file a request with the OHA 

office that issued the summary probate 

decision within 30 days after the date 

the summary probate decision was 

mailed. BIA may also seek review 

within the same deadline. 

(b) The request for review must be in 

writing and signed, and must contain 

the following information: 

(1) The name of the decedent; 

(2) A description of your relationship 

to the decedent; 

(3) An explanation of what errors you 

allege were made in the summary 

probate decision; and 

(4) An explanation of how you are 

adversely affected by the decision. 

§ 30.208 What happens after I file a 

request for review? 

(a) Within 30 days of receiving a 

request for review, OHA will notify the 

agency that prepared the probate file, all 

other affected agencies, and all 

interested parties of the request. 

(b) A judge will review the merits of 

the case, consider any allegations of 

errors in the summary probate decision, 

conduct a hearing if necessary or 

appropriate to address the issues raised 

in the request, and issue an order 

affirming, modifying, or vacating the 

summary probate decision. 

(c) The judge must distribute the final 

order on the request to review to each 

affected agency and to each interested 

party. The order must include a notice 

stating that interested parties who are 

adversely affected, or BIA, have a right 

to appeal the final order to the Board 

within 30 days of the date on which the 

final order was mailed, and giving the 

Board’s address. 

§ 30.209 What will the judge or ADM do 

with the official record of the summary 

probate case? 

The judge or ADM will transfer the 

official record of the summary probate 

case to the agency originating the 

probate, by sending all original hard 

copies, and transmitting all digital files, 

that are designated by OHA as part of 

the official record, including: 

(a) The decision, order, and the 

notices thereof; 

(b) A copy of the notice of hearing on 

review with proof of mailing, if 

applicable; 

(c) The record of the evidence 

received at the hearing on review, if a 

hearing was held, including any 

transcript made of the testimony; 

(d) Any wills, codicils and 

revocations; 

(e) Any pleadings and briefs filed; 

(f) Interlocutory orders; 

(g) Copies of all proposed or accepted 

settlement agreements, consolidation 

agreements, and renunciations and 

acceptances of renunciations; and 

(h) Any other documents deemed 

material by the judge. 

Subpart J—Formal Probate 

Proceedings 

■ 17. Revise §§ 30.210 and 30.211 to 

read as follows: 

§ 30.210 How will I receive personal notice 

of the formal probate proceeding? 

(a) You will receive personal notice of 

the formal probate proceeding hearing 

described in § 30.114 by first class mail 

that includes: 

(1) The most recent will submitted 

with the probate case and any codicils 

to that will; and 

(2) A certificate of mailing with the 

mailing date signed by the person who 

mailed the notice. 

(b) The notice will be mailed to you 

at least 21 days before the date of the 

hearing. 

(c) A presumption of actual notice 

exists for any person to whom OHA sent 

a notice under this section unless the 

notice is returned by the Postal Service 

as undeliverable to the addressee. 

§ 30.211 How will OHA provide public 

notice of the formal probate proceeding? 

(a) In addition to the mailed notice in 

§ 30.210, OHA will also arrange for the 


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posting of notice of probate hearings for 

formal probate proceedings at least 21 

days before the date of the hearing. 

(b) The notice may contain 

information for more than one hearing 

and will specify the names of the 

decedents, the probate case numbers of 

the cases, the dates of the decedents’ 

deaths, the dates of the most recent 

wills filed with the probate cases, and 

the dates, times, and places of the 

hearings. 

(c) OHA will post the notice on its 

website at the following link: https://

www.doi.gov/oha/organization/phd. 

(d) Unless one of the circumstances 

listed in paragraph (e) of this section is 

present, OHA will also arrange for the 

physical posting of the notice in each of 

the following locations: 

(1) The home agency; 

(2) The agency with jurisdiction over 

each parcel of trust or restricted 

property in the estate, if different from 

the home agency; 

(3) A conspicuous place in the 

vicinity of the designated place of 

hearing, if the hearing is designated for 

a location other than the agency listed 

in paragraph (d)(1) or (2) of this section; 

and 

(4) Additional locations if the judge 

determines that further posting is 

appropriate. 

(e) OHA may proceed with the 

hearing without physical posting of the 

notice if physical posting was not 

possible due to: 

(1) The agency office being closed or 

inaccessible; or 

(2) Extenuating circumstances 

preventing personnel physically 

posting. 

■ 18. Revise §§ 30.238 through 30.246 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? 

30.239 Does any distribution of the estate 

occur while a petition for rehearing is 

pending? 

30.240 How will the judge decide a petition 

for rehearing? 

30.241 May I submit another petition for 

rehearing? 

30.242 When does the judge’s order on a 

petition for rehearing become final? 

30.243 May a closed probate case be 

reopened? 

30.244 When must a petition for reopening 

be filed? 

30.245 What legal standard will be applied 

to reopen a case? 

30.246 What must be included in a petition 

for reopening? 

* * * * * 

§ 30.238 May I file a petition for rehearing 

if I disagree with the judge’s decision in the 

formal probate hearing? 

(a) A petition for rehearing seeking to 

correct a substantive error may be filed 

by the BIA or by an interested party who 

is adversely affected by the decision. 

(b) A petition for rehearing must be 

filed with the judge within 30 days after 

the date on which the decision was 

mailed under § 30.237. 

(c) A petition for rehearing must 

allege an error of fact or law in the 

decision and must state specifically and 

concisely the grounds on which the 

petition is based. The petition may be 

supported with newly discovered 

evidence or evidence that was not 

available at the time of the hearing. 

(d) If you are an interested party and 

you received proper notice of the 

hearing: 

(1) You, or BIA on your behalf, may 

raise an issue on rehearing only if you 

raised it at or before the hearing, 

whether or not you attended the 

hearing. Any issue you raise for the first 

time on rehearing may be denied solely 

because you failed to timely raise the 

issue; and 

(2) You may only use evidence on 

rehearing that was submitted at or 

before the hearing, if that evidence was 

available or discoverable to you at that 

time. Any new evidence you submit on 

rehearing may be disregarded by the 

judge, if it was available or discoverable 

to you at the time the hearing was held. 

(e) If the petition is based on newly 

discovered evidence or evidence that 

was unavailable at the time of the 

hearing, it must: 

(1) Be accompanied by documentation 

of that evidence, including, but not 

limited to, one or more affidavits of a 

witness stating fully the content of the 

new evidence; and 

(2) State the reasons for failure to 

discover and present that evidence at 

the hearings held before issuance of the 

decision. 

(f) OHA will send to BIA a notice of 

receipt of a petition for rehearing as 

soon as practicable, ordering that the 

decedent’s estate not be distributed 

during the pendency of the petition for 

rehearing. OHA will also forward a copy 

of the petition and any documents filed 

with the petition to the interested 

parties and 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 decide a 

petition for rehearing? 

(a) The judge may consider a petition 

as a petition for reopening if the petition 

for rehearing is not timely filed. 

(b) The judge may summarily deny 

the petition based on the deficiencies of 

the petition. A summary denial is an 

order in which the judge denies the 

petition without deciding the merits of 

the issues raised in the petition and is 

warranted if: 

(1) The petition alleges mere 

disagreement with a decision; 

(2) The petition is based on newly 

discovered evidence and fails to meet 

the requirements of § 30.238(e); or 

(3) The petition is based solely on 

issues or evidence described in 

§ 30.238(d)(1) or (2). 

(c) If the petition fails to show proper 

grounds for rehearing, the judge will 

issue an order denying the petition for 

rehearing and including the reasons for 

denials. 

(d) If the petition shows proper 

grounds for rehearing, the judge must: 

(1) Cause copies of the petition and all 

papers filed by the petitioner to be 

served on those persons whose interest 

in the estate may be affected if the 

petition is granted; 

(2) Allow all persons served a 

reasonable, specified time in which to 

respond to the petition for rehearing; 

and 

(3) Consider with or without a 

hearing, the issues raised in the petition. 

(e) The judge may affirm, modify, or 

vacate the former decision. 

(f) On entry of a final order, including 

a summary denial, the judge must 

distribute the order to the petitioner, the 

agencies, and the interested parties. The 

order must include a notice stating that 

interested parties who are adversely 

affected, or BIA, have the right to appeal 

the final order to the Board, within 30 

days of the date on which the order was 

mailed, and giving the Board’s address. 

§ 30.241 May I submit another petition for 

rehearing? 

No. Successive petitions for rehearing 

may not be filed by the same party or 

BIA. 

§ 30.242 When does the judge’s order on 

a petition for rehearing become final? 

The order on a petition for rehearing 

will become final on the expiration of 

the 30 days allowed for the filing of a 

notice of appeal, as provided in this part 

and § 4.320 of this chapter. The 

jurisdiction of the judge terminates 

when he or she issues an order finally 

disposing of a petition for rehearing, 

except for the reopening of a case under 

this part. 


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§ 30.243 May a closed probate case be 

reopened? 

A closed probate case may be 

reopened if, the decision or order issued 

in the probate case contains an error of 

fact or law (including, but not limited 

to, a missing or improperly included 

heir or devisee, a found will, or an error 

in the distribution of property), and the 

error is discovered more than 30 days 

after the mailing date of a decision. 

(a) Any interested party or BIA may 

seek correction of the error of fact or law 

by filing a petition for reopening. 

(b) Reopening may also be initiated on 

a judge’s own motion. 

§ 30.244 When must a petition for 

reopening be filed? 

(a) A petition for reopening to correct 

an error of fact or law in a decision or 

post-decision order may be filed at any 

time, but if a petition for reopening is 

filed by an interested party, or by BIA 

on behalf of an interested party, it must 

be filed within 1 year after the 

interested party’s discovery of the 

alleged error. 

(b) If a petition for reopening to 

correct an error of fact or law in the 

original decision is filed before the 

deadline to file a petition for rehearing 

has passed, it will be treated as a 

petition for rehearing. 

§ 30.245 What legal standard will be 

applied to reopen a case? 

(a) If a petition for reopening is filed 

within 3 years or less of the date of the 

decision or order, the judge may reopen 

the case to correct an error of fact or law 

in the decision or order. 

(b) When a petition for reopening is 

filed more than 3 years after the date of 

the decision or order, the judge may 

reopen the case if the judge finds that 

the need to correct the error outweighs 

the interests of the public and heirs or 

devisees in the finality of the probate 

proceeding. 

§ 30.246 What must be included in a 

petition for reopening? 

(a) A petition for reopening must: 

(1) State specifically and concisely the 

grounds on which the petition is based; 

and 

(2) Include all relevant evidence in 

the form of documents and/or sworn 

affidavits supporting any allegations 

and relief requested in the petition. 

(b) A petition filed by an interested 

party or by BIA on behalf of an 

interested party must also: 

(1) State the date the interested party 

discovered the alleged error; 

(2) Include all relevant evidence in 

the form of documents and/or sworn 

affidavits, concerning when and how 

the interested party discovered the 

alleged error; 

(c) A petition filed more than 3 years 

after the date of the decision or order 

must show that the need to correct the 

error outweighs the interests of the 

public and heirs or devisees in the 

finality of the probate proceeding, 

which may be shown by addressing the 

following factors in the petition, as 

applicable: 

(1) The nature of the error; 

(2) The passage of time; 

(3) Whether the interested party 

exercised due diligence in pursuing his 

or her rights; 

(4) Whether the interested party’s 

ancestor exercised due diligence in 

pursuing his or her rights and whether 

a failure to exercise should be imputed 

to the interested party; 

(5) The availability of witnesses and 

documents; 

(6) The general interest in 

administrative finality; 

(7) The number of other estates that 

would be affected by the reopening, if 

known; and 

(8) Whether the property that was in 

the estate is still available for 

redistribution if the case is reopened, if 

known. 

■ 19. Add §§ 30.247 through 30.249 

under undesignated center heading 

‘‘Decisions in Formal Proceedings’’ to 

read as follows: 

§ 30.247 What is not appropriate for a 

petition for reopening? 

A petition for reopening may not: 

(a) Raise issues or objections that were 

already addressed in a prior rehearing or 

reopening order; 

(b) Raise issues or objections when 

the interested party had the opportunity 

to raise them earlier because they 

received proper notice of the hearing or 

summary decision; or 

(c) Submit evidence that was available 

or discoverable at the time the decision 

was issued, or available during the 

rehearing period. The requirements at 

§ 30.238(e) concerning presentation of 

new evidence on rehearing also apply to 

the presentation of new evidence on 

reopening. 

§ 30.248 How will the judge decide my 

petition for reopening? 

(a) The judge may summarily deny 

the petition for reopening based on 

deficiencies in the petition. A summary 

denial is an order in which the judge 

denies the petition without deciding the 

merits of the allegations in the petition 

and is warranted if: 

(1) The petition alleges mere 

disagreement with a decision; 

(2) The petition requests the same 

relief that was previously addressed in 

a rehearing order or reopening order; 

(3) The petition raises only issues or 

objections by or on behalf of an 

interested party for the first time on 

reopening and that interested party 

received proper notice of the hearing or 

summary decision; 

(4) The petition is based on newly 

discovered evidence and fails to meet 

the requirements of § 30.238(e); or 

(5) The petition is based solely on 

issues or evidence described in 

§ 30.245(c). 

(b) If a summary denial is not 

warranted, the judge will review the 

merits of the petition to determine if the 

petition asserts proper grounds for 

reopening. 

(1) If the petition fails to assert proper 

grounds for reopening, then the judge 

will issue an order denying the petition 

for reopening and addressing the merits 

of the petition. 

(2) If the petition asserts proper 

grounds for reopening, the judge will: 

(i) Cause copies of the petition and all 

papers filed by the petitioner to be 

served on those persons whose interest 

in the estate may be affected if the 

petition is granted; 

(ii) Allow all persons served a 

reasonable, specified time in which to 

respond to the petition for reopening by 

filling responses, cross-petitions, or 

briefs; 

(iii) Suspend further distribution of 

the estate or income during the 

reopening proceedings, if appropriate, 

by order to the affected agencies; 

(iv) Consider, with or without a 

hearing, the issues raised in the petition; 

and 

(v) Affirm, modify, or vacate the 

decision or order. 

(c) On entry of a final order, including 

a summary denial, the judge must 

distribute the order to the petitioner, the 

agencies, and the interested parties. The 

order must include a notice stating that 

interested parties who are adversely 

affected, or BIA, have the right to appeal 

the final order to the Board, within 30 

days of the mailing date, and giving the 

Board’s address. 

§ 30.249 What happens when the judge 

issues an order on reopening? 

(a) Copies of the judge’s order on 

reopening must be mailed to the 

petitioner, the affected agencies, and all 

interested parties. 

(b) The judge must submit the record 

made on a reopening petition to the 

designated LTRO. 

(c) The order on reopening will 

become final on the expiration of the 30 

days allowed for the filing of a notice of 

appeal, as provided in this part. 


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§§ 30.250 and 30.251 through 30.254 

[Redesignated as §§ 30.500 and 30.503 

through 30.506] 

■ 20. Redesignate §§ 30.250 and 30.251 

through 30.254 as §§ 30.500 and 30.503 

through 30.506. 

Subpart K [Removed and Reserved] 

■ 21. Remove and reserve subpart K. 

■ 22. Add new §§ 30.250 through 30.253 

under undesignated center heading 

‘‘Decisions in Formal Proceedings’’ to 

read as follows: 

§ 30.250 May a correction order be issued 

to correct typographical and other nonsubstantive errors? 

If, after issuance of a decision or other 

probate order, it appears that the 

decision or other probate order contains 

non-substantive errors, the judge may 

issue a correction order to correct them. 

Errors are non-substantive if they are 

merely typographical, clerical, or their 

correction would not change the 

distribution of a decedent’s property. 

(a) A judge may issue a correction 

order for the purpose of correcting nonsubstantive errors on the judge’s own 

motion. A request for correction order 

may also be filed by BIA or an interested 

party at any time. 

(b) Copies of the correction order will 

be sent to BIA and all interested parties. 

(c) The correction order is not subject 

to appeal to the Board. 

§ 30.251 What happens if BIA identifies 

additional property of a decedent after the 

probate decision is issued? 

If, after issuance of a decision, BIA 

identifies additional trust or restricted 

property of a decedent that it had not 

already identified at the time of the 

decision, then BIA will submit a 

petition to OHA for an order directing 

distribution of the additional property. 

(a) OHA will accept the petition at 

any time after issuance of the decision. 

(b) The judge will review the petition 

to ensure that the petition identifies the 

additional property and the source of 

that property (e.g., inheritance or 

approval of a deed) and includes the 

following: 

(1) A certified inventory describing 

the additional trust or restricted land, if 

applicable, or, if the additional property 

is trust personalty, documents verifying 

the balance and source of the additional 

trust personalty, and a statement that 

the inventory lists only the property to 

be added; 

(2) A copy of the decision, or 

modification or distribution order and 

corresponding inventory issued in the 

probate case from which the property 

was inherited by the decedent, if 

applicable; 

(3) A statement identifying each 

newly added share of any allotment that 

increases the decedent’s total share of 

the ownership interest of the allotment 

to 5 percent or more; 

(4) A copy of BIA’s notification to the 

Tribes with jurisdiction over the 

interests of the list of the additional 

interests that represent less than 5 

percent of the entire undivided 

ownership of each parcel (after being 

added to the decedent’s estate) under 25 

CFR 15.401(b); and 

(5) A certification that all interested 

parties have been associated to the case 

and their names and addresses are 

current. 

(c) The judge may, at the judge’s 

discretion, either: 

(1) Deny the request for good cause; 

or 

(2) Address the request with or 

without a hearing. 

(d) If the judge does not deny the 

petition, the judge will issue an order 

that directs distribution of the 

additional property. The order may 

direct that the additional property be 

distributed in the same manner as 

property already addressed in the 

decision, or the order may direct that 

the additional property be distributed in 

a different manner than property 

already addressed in the decision. 

(e) The judge must furnish copies of 

the distribution order to the agency and 

to all interested parties who share in the 

estate. The distribution order will notify 

all heirs or devisees, including any 

surviving spouse, of the right to seek 

reconsideration to: 

(1) Object to the findings and 

conclusions of the distribution order; 

(2) Renounce their interest(s) in any of 

the additional property; 

(3) Include the additional property in 

an existing or new consolidation 

agreement; 

(4) Allege an error in BIA’s inventory 

under § 30.128; or 

(5) File a request to purchase the 

additional property at probate. 

(f) The distribution order will also 

instruct the heirs or devisees that they 

must notify OHA in writing of their 

request for reconsideration of the 

distribution order within 30 days of the 

mailing of the distribution order, and 

that their right to seek reconsideration 

will be waived if they fail to notify OHA 

in writing by the deadline. For purposes 

of filing the request for reconsideration, 

the written submission will be 

considered to be filed with OHA on the 

date it is postmarked or faxed to OHA. 

(g) If OHA does not receive a timely 

request for reconsideration, the 

distribution order will become final on 

the 45th day after the mailing date. An 

untimely filed request for 

reconsideration will not be considered 

by OHA and will not disturb the finality 

of the distribution order. 

§ 30.252 What happens if BIA identifies 

that property was incorrectly included in a 

decedent’s inventory? 

If, after issuance of a decision, BIA 

identifies certain trust or restricted 

property or an interest therein that was 

incorrectly included in a decedent’s 

inventory, then BIA will submit a 

petition to OHA for an order notifying 

all heirs or devisees of the correction 

and addressing any changes in 

distribution of property resulting from 

the correction. 

(a) OHA will accept the petition at 

any time after issuance of the decision. 

(b) The judge will review the petition 

to ensure that it identifies the property 

that it removed from the estate, explains 

why the property should not have been 

included, and includes the following: 

(1) A newly issued certified inventory 

describing the trust or restricted land 

remaining in decedent’s estate, if 

applicable; 

(2) A copy of the decision, or 

modification or distribution order and 

corresponding inventory issued in the 

probate case from which BIA discovered 

that the property was incorrectly 

included in the decedent’s estate, if 

applicable; 

(3) A statement identifying each 

property in the decedent’s estate that 

decreased to a total share of the 

ownership of the allotment to less than 

5 percent as a result of the removal of 

property from the estate; and 

(4) A certification that all interested 

parties have been associated to the case 

and their names and addresses are 

current. 

(c) The judge may, at the judge’s 

discretion, either: 

(1) Deny the request for good cause; 

or 

(2) Address the request with or 

without a hearing. 

(d) If the judge does not deny the 

petition, the judge will issue an order 

that addresses any modifications to the 

distribution of the decedent’s property 

resulting from the correction of the 

inventory. The order may find that the 

correction of the inventory does not 

modify the distribution of any 

remaining property in the estate. 

(e) The judge must furnish copies of 

the distribution order to the agency and 

to all interested parties who share in the 

estate. The distribution order will 

inform all heirs or devisees, including 

any surviving spouse, of the right to 

seek reconsideration to object to the 

findings and conclusions of the 


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distribution order or to allege an error 

in BIA’s inventory under § 30.128. 

(f) The distribution order will also 

instruct the heirs or devisees that they 

must notify OHA in writing of their 

objection to the distribution order 

within 30 days of the mailing of the 

distribution order, and that their right to 

seek reconsideration will be waived if 

they fail to notify OHA in writing by the 

deadline. For purposes of filing the 

request for reconsideration, the written 

submission will be considered to be 

filed with OHA on the date it is 

postmarked or faxed to OHA. 

(g) If OHA does not receive a timely 

request for reconsideration, the 

distribution order will become final on 

the 45th day after the mailing date. An 

untimely filed request for 

reconsideration will not be considered 

by OHA and will not disturb the finality 

of the distribution order. 

§ 30.253 What happens if a request for 

reconsideration of a distribution order is 

timely made? 

(a) If an heir, devisee, BIA or Tribe 

files a timely request for 

reconsideration, OHA will: 

(1) Send to BIA a notice of receipt of 

a petition for reconsideration as soon as 

practicable, ordering that the newly 

added property not be distributed or 

incorrectly included property not be 

removed, as applicable, during the 

pendency of the petition for 

reconsideration; and 

(2) Forward a copy of the petition and 

any documents filed with the petition to 

the interested parties and affected 

agencies. 

(b) The agencies must not distribute 

any portion of the estate while the 

petition is pending, unless otherwise 

directed by the judge. 

(c) If proper grounds for 

reconsideration are not shown, the 

judge will issue an order denying the 

petition for reconsideration and 

including the reasons for the denial. 

(d) If proper grounds for 

reconsideration are shown, the judge 

must: 

(1) Allow all persons served a 

reasonable, specified time in which to 

submit answers or legal briefs in 

response to the petition; and 

(2) Consider, with or without a 

hearing, the issues raised in the petition, 

including requests to renounce, requests 

to purchase newly added properties at 

probate, and requests to include newly 

added property in an existing or new 

consolidation agreement. 

(e) The judge will not reconsider 

findings made in the decision; the judge 

will only reconsider findings made in 

the distribution order regarding the 

distribution of the additional property 

or modification to distribution resulting 

from the inventory correction, as 

applicable. 

(f) The judge may affirm, modify, or 

vacate the distribution order. 

(g) On entry of a final order, the judge 

must distribute the order to the 

petitioner, the agencies, and the 

interested parties. The order must 

include notice stating that interested 

parties who are adversely affected, or 

BIA, have the right to appeal the final 

order to the Board, within 30 days of the 

date on which the order was mailed, 

and giving the Board’s address. 

(h) Neither BIA nor any interested 

party may file successive petitions for 

reconsideration. 

(i) The order on a petition for 

reconsideration will become final on the 

expiration of the 30 days allowed for the 

filing of a notice of appeal, as provided 

in this part and § 4.320 of this chapter. 

■ 23. Add subpart M to read as follows: 

Subpart M—Purchase at Probate 

Sec. 

30.400 What may be purchased at probate? 

30.401 Who may purchase at probate? 

30.402 Does property purchased at probate 

remain in trust or restricted status? 

30.403 Is consent required for a purchase at 

probate? 

30.404 How do I initiate a purchase at 

probate? 

30.405 When may I initiate a purchase at 

probate? 

30.406 May I withdraw my request to 

purchase at probate? 

30.407 How will OHA address requests to 

purchase at probate? 

30.408 What will OHA include in the 

probate decision or reconsideration order 

when a purchase at probate request is 

pending? 

30.409 How will a pending purchase at 

probate request affect how the decedent’s 

property is distributed? 

30.410 How will the purchase at probate 

process continue after the decision or 

reconsideration order is issued? 

30.411 How will the interests to be 

purchased at probate be valued? 

30.412 What will OHA do when it receives 

BIA’s notification that an appraisal/ 

valuation has been completed? 

30.413 Who are potential bidders? 

30.414 What will be contained in the Order 

to Submit Bids? 

30.415 What may I do if I do not agree with 

the determination of fair market value in 

the Order to Submit Bids? 

30.416 How does OHA decide whether a 

bid is successful? 

30.417 How does the judge notify the 

parties whether there was a successful 

bid? 

30.418 When must the successful bidder 

pay for the interest purchased? 

30.419 What happens after the successful 

bidder submits payment? 

30.420 What happens if the successful 

bidder does not submit payment within 

30 days? 

30.421 When does a purchased interest vest 

in the purchaser? 

30.422 What will happen to any lease 

income received or accrued from 

purchased land interests before the 

purchased interest vests in the 

purchaser? 

30.423 What may I do if I disagree with the 

judge’s determination to approve or deny 

a purchase at probate? 

30.424 When will the order approving or 

denying the purchase at probate become 

final? 

§ 30.400 What may be purchased at 

probate? 

(a) The judge may allow an eligible 

purchaser to purchase at probate all or 

part of the trust or restricted land in the 

estate of a person who died on or after 

June 20, 2006. Any interest in trust or 

restricted land, including a life estate 

that is part of the estate (i.e. a life estate 

owned by the decedent but measured by 

the life of someone who survives the 

decedent), may be purchased at probate, 

except as provided in paragraph (b) of 

this section. 

(b) Purchase of minerals-only real 

property interests (i.e., an allotment that 

does not include a surface interest) may 

be considered for purchase at probate 

only if sufficient evidence of the fair 

market value of the real property 

interest is submitted. No interest in a 

minerals-only property may be 

purchased at probate on the basis of the 

value of the minerals themselves. 

§ 30.401 Who may purchase at probate? 

An eligible purchaser at probate is 

any of the following: 

(a) Any devisee or eligible heir who 

is receiving an interest in the same 

parcel of land by devise or descent 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. 

§ 30.402 Does property purchased at 

probate remain in trust or restricted status? 

Yes. The property interests purchased 

at probate must remain in trust or 

restricted status. 

§ 30.403 Is consent required for a 

purchase at probate? 

(a) Except as provided in paragraphs 

(b) and (c) of this section, to purchase 

at probate a decedent’s interest in trust 

or restricted property, the eligible 

purchaser must have the consent of: 


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(1) The heir or devisee of the share to 

be purchased; 

(2) Any surviving spouse whose share 

is to be purchased and who receives a 

life estate under 25 U.S.C. 2206(a)(2)(A) 

or (D); or 

(3) Any recipient of an interest 

received under an approved 

consolidation agreement whose share is 

to be purchased. 

(b) If consent is required from an heir 

or devisee for a purchase at probate, the 

heir or devisee may notify OHA at any 

time after the request for purchase at 

probate is filed that the heir or devisee 

is not willing to consent to sell. 

(1) To notify OHA, the heir or devisee 

must state, either on record at the 

probate hearing, or in writing to OHA, 

that the heir or devisee is not willing to 

consent to sell the property under any 

circumstances and/or is not willing to 

consider any bids to purchase the 

property interest. 

(2) When OHA receives such notice, 

it will deny the request to purchase the 

property interest to which the notice 

applies. 

(c) If you are the Tribe with 

jurisdiction over the parcel containing 

the interest, you do not need the 

consent of those listed under paragraph 

(a) of this section if the following five 

conditions are met: 

(1) The interest will descend by 

intestate succession; 

(2) The judge determines based on the 

Department’s 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; 

(4) The heir or surviving spouse is not 

a member of your Tribe or eligible to 

become a member; and 

(5) The interest is not included in an 

approved consolidation agreement. 

(d) BIA may purchase an interest in 

trust or restricted land on behalf of the 

Tribe with jurisdiction over the parcel 

containing the interest if BIA obtains 

consent under paragraph (a) of this 

section or the conditions in paragraph 

(c) of this section are met. 

§ 30.404 How do I initiate a purchase at 

probate? 

Any eligible purchaser may initiate a 

purchase at probate by submitting a 

written request to OHA to purchase at 

probate. 

§ 30.405 When may I initiate a purchase at 

probate? 

(a) To initiate a purchase at probate 

during the initial probate proceeding, 

the eligible purchaser must submit the 

written request before the completion of 

the first probate hearing. 

(b) If a property interest the eligible 

purchaser would like to purchase has 

been added to the decedent’s estate 

under § 30.251, the purchaser must 

submit the written request within 30 

days of the mailing of the distribution 

order issued under § 30.251(d). 

§ 30.406 May I withdraw my request to 

purchase at probate? 

At any point before the purchase is 

complete, a purchaser may withdraw a 

request to purchase at probate. In order 

to withdraw a request to purchase, the 

requester must file with OHA a written 

statement that the request is withdrawn. 

The requester is not required to provide 

reasons or justification for withdrawal 

of the request. 

§ 30.407 How will OHA address requests 

to purchase at probate? 

The judge has discretion to deny a 

request to purchase at probate in the 

decision or at any time thereafter. If one 

or more requests to purchase at probate 

are timely filed, OHA will address those 

requests in the probate decision (or 

reconsideration order if the request to 

purchase is for property that has been 

added to the decedent’s estate under 

§ 30.251) and either deny the requests at 

that time or provide instructions for 

continuing the purchase at probate 

process. 

§ 30.408 What will OHA include in the 

probate decision or reconsideration order 

when a purchase at probate request is 

pending? 

(a) If a purchase at probate request is 

pending at the time the probate decision 

(or reconsideration order under 

§ 30.251) is issued, and is not denied in 

the decision (or reconsideration order), 

the decision (or reconsideration order) 

will include the following to address the 

request: 

(1) A list of all requests to purchase 

at probate that have been submitted; 

(2) Notification to the parties as to 

whether consent of the applicable heirs 

or devisees is required to approve the 

requested purchase; and 

(3) Direction to BIA to obtain an 

appraisal or valuation for each interest 

for which a purchase at probate request 

has been submitted. 

(b) If the purchase of the interest 

requires consent of the applicable heirs 

or devisees, the probate decision or 

reconsideration order will also: 

(1) Direct the heirs or devisees to 

submit written notification within 30 

days of the mailing date of the decision 

or reconsideration order that the heirs or 

devisees would consider selling the 

interest to an eligible purchaser during 

the probate process if a bid is made for 

fair market value or greater; 

(2) Inform the heirs or devisees that 

OHA may consider failure to provide 

such written notification as a refusal to 

consent to sell the property during 

probate, and may rely on such refusal to 

deny the request to purchase at probate; 

and 

(3) Direct BIA to postpone seeking an 

appraisal/valuation of that property 

until BIA receives future notice from 

OHA that at least one heir or devisee 

has filed the written notification that the 

heir or devisee would consider selling 

the interest. 

§ 30.409 How will a pending purchase at 

probate request affect how the decedent’s 

property is distributed? 

When the decision (or distribution 

order following a reconsideration order 

under § 30.251) becomes final, BIA may 

distribute the estate as stated in the 

decision or distribution order. Any 

property interest that is the subject of a 

pending request for purchase at probate 

will be conveyed with an encumbrance, 

which will remain on the property 

interest until the request is fully 

addressed. The encumbrance does not 

affect distribution of trust personalty. 

§ 30.410 How will the purchase at probate 

process continue after the decision or 

reconsideration order is issued? 

After a decision or reconsideration 

order is issued: 

(a) If consent is required for the 

purchase of an interest, and an heir or 

devisee does not submit written 

notification that he or she would 

consider selling the interest by the 

deadline OHA established, the request 

to purchase the applicable property 

interest(s) is denied by operation of law. 

In such cases, OHA will notify the BIA 

that it may remove the encumbrance 

remaining on the applicable property 

interest(s). 

(b) If the heirs or devisees submit the 

written notification that they would 

consider selling the interest by the 

deadline OHA established, then OHA 

will notify BIA that it may obtain an 

approval/valuation of the property. 

(c) In any other instances in which a 

purchase request is denied, BIA may 

remove any encumbrance remaining on 

the applicable property interest(s). 

§ 30.411 How will the interests to be 

purchased at probate be valued? 

(a) For each parcel for which a request 

to purchase has been submitted, BIA 

will obtain appraisal(s) or other fair 

market valuation(s) in compliance with 

the Uniform Standards of Professional 

Appraisal Practice (USPAP) or other 


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approved valuation methods under 25 

U.S.C. 2214. 

(b) Any appraisal/valuation must be 

made on the basis of the fair market 

value of the parcel as of the date of the 

decedent’s death. 

(c) No valuation document filed by 

the BIA, aside from an appraisal, will be 

used to determine the fair market value 

of trust land during a purchase at 

probate unless the document clearly 

states that it assesses the fair market 

value of the real property interest or is 

accompanied by a certification that it 

does so. 

§ 30.412 What will OHA do when it 

receives BIA’s notification that an appraisal/ 

valuation has been completed? 

When OHA receives BIA’s 

notification that an appraisal/valuation 

has been completed and BIA files a 

Petition to Complete Purchase at 

Probate, OHA will issue an Order to 

Submit Bids to all potential bidders to 

submit bids for property interests with 

pending purchase at probate requests. 

(a) Potential bidders may submit bids 

even if they have not previously 

submitted a request to purchase at 

probate. 

(b) OHA will identify the individuals/ 

entities who are eligible to submit bids 

for each property interest available for 

purchase at probate. 

§ 30.413 Who are potential bidders? 

(a) The Tribe will be the only 

potential bidder and no other bids will 

be accepted if: 

(1) The Tribe with jurisdiction over 

the property submits the only request to 

purchase within the deadline; and 

(2) The requirements of § 30.403(c) 

(i.e. consent of the heir is not required) 

are met. 

(b) In other situations, potential 

bidders may include: 

(1) Any eligible purchaser who has 

satisfied the requirements of §§ 30.404 

and 30.405; 

(2) Eligible heirs; 

(3) Eligible devisees; 

(4) The Indian Tribe with jurisdiction 

over the property interest; and 

(5) Co-owners of trust or restricted 

interests in the same allotment who 

have previously notified BIA in writing 

that they wish to receive probate notices 

concerning that allotment. 

§ 30.414 What will be contained in the 

Order to Submit Bids? 

For each property for which a request 

to purchase at probate is pending, the 

Order to Submit Bids will include: 

(a) A finding of the fair market value 

of the interest to be sold, determined in 

accord with the appraisal/valuation 

provided by the BIA under § 30.411; 

(b) Information concerning where a 

copy of the appraisal/valuation may be 

viewed; 

(c) Direction to potential bidders to 

submit bids to purchase the property 

that are equal to or greater than the fair 

market value; 

(d) A deadline by which OHA must 

receive bids from all potential bidders; 

and 

(e) A statement that if no bids are 

submitted by the deadline, the request 

to purchase will be denied. 

§ 30.415 What may I do if I do not agree 

with the determination of fair market value 

in the Order to Submit Bids? 

(a) You may object to the 

determination of fair market value 

stated in the Order to Submit Bids if: 

(1) You are the heir, devisee, or 

surviving spouse whose interest is to be 

sold; 

(2) You filed a written request to 

purchase; or 

(3) Any potential bidder or other party 

who may be affected by the 

determination of the fair market value. 

(b) To object to the determination of 

fair market value: 

(1) You must file a written objection 

with OHA no later than 45 days after the 

mailing date of the Order to Submit 

Bids. 

(2) The objection must: 

(i) State the reasons for the objection; 

and 

(ii) Include any supporting 

documentation showing why the fair 

market value should be modified. 

(3) You must provide copies of the 

written objection and any supporting 

documentation to all parties who have 

an interest in the purchase of the 

property. 

(c) Any party who may be affected by 

the determination of the fair market 

value may file a response to the written 

objection with OHA no later than 45 

days after the date the written objection 

was served on the interested parties. 

Any document supporting the party’s 

response must be submitted with the 

response. 

(d) The judge will consider any timely 

submitted written objection and 

responses, and will determine whether 

to modify the finding of fair market 

value, with or without a valuation 

hearing. OHA will issue a Modified 

Order to Submit Bids that addresses the 

objection and responses. 

(e) If you were directed to submit a 

bid, you may preserve your right to 

submit a bid by filing the written 

objection instead of a bid. 

§ 30.416 How does OHA decide whether a 

bid is successful? 

OHA will decide that a bid is 

successful if it meets the following 

requirements. 

(a) The bid is equal to or greater than 

the fair market value of the interest and 

was timely filed. 

(b) In cases in which consent of an 

heir, devisee, or surviving spouse is 

required for the purchase, the applicable 

heir devisee, or surviving spouse 

accepts a bid. 

(1) OHA may hold a hearing for the 

purpose of determining whether the 

applicable heir, devisee, or surviving 

spouse accepts a bid. 

(2) If multiple bids are submitted, the 

applicable heir, devisee, or surviving 

spouse may choose which bid to accept. 

(3) If the applicable heir, devisee, or 

surviving spouse does not accept any 

bid for his or her property interest, the 

request to purchase that property 

interest at probate will be denied. 

§ 30.417 How does the judge notify the 

parties whether there was a successful bid? 

(a) When a judge determines that a 

bid is successful, the judge will issue a 

Notice of Successful Bid to all bidders, 

OST, the BIA agency that prepared the 

probate file, and the BIA agency having 

jurisdiction over the interest sold. The 

Notice of Successful Bid will include 

the following information: 

(1) The parcel and interest sold; 

(2) The identity of the successful 

bidder; 

(3) The amount of the successful bid; 

and 

(4) Instructions to the successful 

bidder to submit payment for the 

interest. 

(b) If no successful bids are received, 

the judge will issue an order denying 

the request to purchase the property. 

§ 30.418 When must the successful bidder 

pay for the interest purchased? 

The successful bidder makes 

payment, according to the instructions 

in the Notice of Successful Bid, of the 

full amount of the purchase price no 

later than 30 days after the mailing date 

of the Notice of Successful Bid. 

§ 30.419 What happens after the 

successful bidder submits payment? 

When the judge is notified by BIA that 

BIA has received payment, the judge 

will issue an order: 

(a) Approving the sale and stating that 

title must transfer as of the date the 

order becomes final; and 

(b) For the sale of an interest subject 

to a life estate, directing allocation of 

the proceeds of the sale and accrued 

income among the holder of the life 


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estate and the holders of any remainder 

interests using 25 CFR part 179. 

§ 30.420 What happens if the successful 

bidder does not submit payment within 30 

days? 

(a) If the successful bidder fails to pay 

the full amount of the bid within 30 

days, the judge will issue an order 

denying the request to purchase or the 

bid (whichever is applicable) and the 

interest in the trust or restricted 

property will be distributed as 

determined by the judge in the decision 

or distribution order. 

(b) The time for payment may not be 

extended. 

(c) Any partial payment received will 

be returned. 

§ 30.421 When does a purchased interest 

vest in the purchaser? 

If the request to purchase (or a bid 

submitted by a potential bidder) is 

approved, the purchased interest vests 

in the purchaser on the date OHA’s 

order approving the sale becomes final. 

§ 30.422 What will happen to any lease 

income received or accrued from 

purchased land interests before the 

purchased interest vests in the purchaser? 

Any lease income received or accrued 

from a property interest before the date 

the purchased interest vests in the 

purchaser will be paid to the heir(s), 

devisee(s), or surviving spouse from 

whom purchase of the interest was 

made based on the fractional ownership 

interests in the parcel as determined in 

the decision or distribution order. 

§ 30.423 What may I do if I disagree with 

the judge’s determination to approve or 

deny a purchase at probate? 

If you are an interested party who is 

adversely affected by the judge’s order 

to approve or deny a purchase at 

probate, you may file an appeal to the 

Board within 30 days after the mailing 

date of OHA’s order approving or 

denying the purchase at probate. 

§ 30.424 When will the order approving or 

denying the purchase at probate become 

final? 

The order to approve or deny the 

purchase at probate becomes final at the 

end of the 30-day appeal period, unless 

a timely appeal is filed. 

§§ 30.500 and 30.503 through 30.506 

[Designated as Subpart N] 

■ 24. Designate newly redesignated 

§§ 30.500 and 30.503 through 30.506 as 

subpart N and add a heading for subpart 

N to read as follows: 

Subpart N—Miscellaneous 

■ 25. Add §§ 30.501 and 30.502 to read 

as follows: 

§ 30.501 When is joint tenancy presumed? 

A judge will presume that a testator 

intended to devise interests in joint 

tenancy when: 

(a) A testator devises trust or 

restricted interests in the same parcel of 

land to more than one person; and 

(b) The will does not contain clear 

and express language stating that the 

devisees receive the interests as tenants 

in common. 

§ 30.502 How does a judge resolve 

conflicts between the anti-lapse provision 

and the presumption of joint tenancy? 

If the presumption of joint tenancy 

and anti-lapse provisions conflict, then 

the judge will give priority to the 

presumption of joint tenancy and the 

share of the deceased devisee will 

descend to the surviving devisees. 

■ 26. Revise newly redesignated 

§ 30.506 to read as follows: 

§ 30.506 When a decedent died intestate 

without heirs, what law applies to trust or 

restricted property? 

The law that applies to trust or 

restricted property when a decedent 

died intestate without heirs depends 

upon whether the decedent died before 

June 20, 2006 or on or after June 20, 

2006. 

(a) When the judge determines that a 

decedent died before June 20, 2006, 

intestate without heirs, the judge will 

apply 25 U.S.C. 373a or 25 U.S.C. 373b 

to address distribution of trust or 

restricted property in the decedent’s 

estate. If it is necessary to determine the 

value of an interest in land located on 

the public domain, to properly apply 25 

U.S.C. 373b, the judge will determine 

fair market value based on an appraisal 

or other valuation method developed by 

the Secretary under 25 U.S.C. 2214. If 

the interest in land located on the 

public domain is valued at more than 

$50,000, the judge’s decision concerning 

distribution of that interest will be a 

recommended decision only. 

(b) When the judge determines that a 

decedent died intestate on or after June 

20, 2006, without surviving lineal 

descendants, parents, or siblings who 

are eligible heirs, the judge will apply 

provisions of the Act to determine 

distribution of trust or restricted land in 

the decedent’s estate. 

(1) If the decedent died without 

surviving lineal descendants, parents, or 

siblings who are eligible heirs, and the 

decedent owned at least 5 percent of an 

allotment, that interest will be 

distributed either to the Indian Tribe 

with jurisdiction over the interest or, if 

there is no Indian Tribe with 

jurisdiction, then split equally among 

the co-owners of the parcel as of the 

decedent’s date of death, subject to the 

exceptions and limitations detailed in 

25 U.S.C. 2206(a)(2)(B)–(C). 

(2) If the decedent died without 

surviving lineal descendants who are 

eligible heirs, and the decedent owned 

less than 5 percent of an allotment, that 

interest will be distributed either to the 

Indian Tribe with jurisdiction over the 

interest or, if there is no Indian Tribe 

with jurisdiction, then split equally 

among the co-owners of the parcel as of 

the decedent’s date of death, subject to 

the exceptions and limitations 

concerning small fractional interests 

detailed in 25 U.S.C. 2206(a)(2)(D). 

(3) For either paragraph (b)(1) or (2) of 

this section, the judge will also 

determine whether the decedent had a 

surviving spouse, and whether the 

surviving spouse is entitled to a life 

estate. 

■ 27. Add § 30.507 to read as follows: 

§ 30.507 How will trust personalty be 

distributed if decedent died intestate on or 

after June 20, 2006, and the Act does not 

specify how the trust personalty should be 

distributed? 

When the judge determines that a 

decedent died intestate on or after June 

20, 2006, without a surviving spouse or 

eligible heirs under the Act, and 

without trust or restricted land over 

which one, and only one, Indian Tribe 

has jurisdiction, the judge will direct 

distribution of trust personalty, 

including trust funds that were on 

deposit in the decedent’s IIM account or 

owing to the decedent as of the 

decedent’s date of death, as follows: 

(a) To the decedent’s surviving 

children, grandchildren, greatgrandchildren, parents, or siblings who 

are not eligible heirs under the Act, in 

the order set forth in 25 U.S.C. 

2206(a)(2)(B). 

(b) If trust personalty does not 

descend under paragraph (a) of this 

section, then to the decedent’s surviving 

nieces and nephews, in equal shares. 

(c) If trust personalty does not 

descend under paragraph (b) of this 

section, then to the Indian Tribe in 

which the decedent was enrolled at the 

time the decedent died. 

(d) If trust personalty does not 

descend under paragraph (c) of this 

section, then: 

(1) To the Indian Tribe in which the 

decedent’s biological parents were 

enrolled, if both were enrolled in the 

same Tribe; 

(2) To the Indian Tribes in which the 

decedent’s biological parents were 

enrolled, in equal shares, if each of the 

decedent’s biological parents was 

enrolled in a different Tribe; or 

(3) If only one biological parent was 

enrolled in an Indian Tribe, to the 


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Indian Tribe in which that biological 

parent was enrolled. 

(e) If trust personalty does not 

descend under paragraph (d) of this 

section, then: 

(1) To the Indian Tribe in which the 

decedent’s biological grandparents were 

enrolled; if all enrolled biological 

grandparents were enrolled in the same 

Tribe; 

(2) To the Indian Tribes in which the 

decedent’s biological grandparents were 

enrolled, in equal shares, if two or more 

of the decedent’s biological 

grandparents were enrolled in different 

Tribes; or 

(3) If only one biological grandparent 

was enrolled in an Indian Tribe, to the 

Indian Tribe in which that biological 

grandparent was enrolled. 

(f) If trust personalty does not descend 

under paragraph (e) of this section, then 

to an Indian Tribe selected by the judge, 

in consideration of the following factors: 

(1) The origin of the funds in the 

decedent’s IIM account; 

(2) The Tribal designator contained in 

the owner identification number or IIM 

account number assigned to the 

decedent by BIA; and 

(3) The geographic origin of the 

decedent’s Indian ancestors. 

Tara Sweeney, 

Assistant Secretary—Indian Affairs. 

Scott Cameron, 

Principal Deputy Assistant Secretary for 

Policy, Management and Budget. 

[FR Doc. 2020–28306 Filed 1–6–21; 8:45 am] 

BILLING CODE 4337–15–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

32 CFR Part 158 

[Docket ID: DOD–2020–OS–0015] 

RIN 0790–AK81 

Operational Contract Support (OCS) 

Outside the United States 

AGENCY: Office of the Under Secretary of 

Defense for Acquisition and 

Sustainment, Department of Defense 

(DoD). 

ACTION: Proposed rule. 

SUMMARY: The DoD is issuing this rule 

to update the policies and procedures 

for operational contract support (OCS) 

outside the United States. These 

changes include broadening the range of 

applicable operational scenarios, 

eliminating content internal to the 

Department, and making updates to 

comply with law and policy. Changes 

include designating contractor 

personnel as part of the DoD total force, 

incorporating requirements for 

accountability and reporting, and 

clarifying responsibilities. Through 

these updates, the Department will also 

address open recommendations from 

the Government Accountability Office 

(GAO). OCS is a segment of the GAO 

High Risk Area of DoD Contract 

Management and while the latest update 

in March 2019 acknowledged progress, 

GAO cited the need to revise and 

reissue guidance to address several open 

recommendations. 

DATES: Comments must be received by 

March 8, 2021. 

ADDRESSES: You may submit comments, 

identified by docket number and/or 

Regulatory Information Number (RIN) 

number and title, by any of the 

following methods: 

• Federal Rulemaking Portal: http://

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail: DoD cannot receive written 

comments at this time due to the 

COVID–19 pandemic. Comments should 

be sent electronically to the docket 

listed above. 

Instructions: All submissions received 

must include the agency name and 

docket number or RIN for this Federal 

Register document. The general policy 

for comments and other submissions 

from members of the public is to make 

these submissions available for public 

viewing on the internet at http://

www.regulations.gov as they are 

received without change, including any 

personal identifiers or contact 

information. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Donna M. Livingston, 703–692–3032, 

donna.m.livingston.civ@mail.mil. 

SUPPLEMENTARY INFORMATION: 

I. Executive Summary 

A. Purpose of the Rule 

The Joint Force relies on contracted 

support in nearly every mission and 

operational setting. Operational 

Contract Support (OCS) is how the 

Department plans for and integrates 

contracted capabilities and associated 

contractor personnel providing support 

to operations within a designated 

geographic area. Since 2007, the 

Department has been heavily focused on 

better oversight, management, and 

accounting of contractors supporting 

U.S. military operations. Concurrently, 

there has been increasing demand from 

commanders for more visibility of 

contractor personnel. Successfully 

planning for, procuring, and integrating 

contracted support requires that 

commanders have a full understanding 

of what contracted support is needed 

and when; how requirements can be 

optimized and executed; and how the 

Department includes contracted support 

as part of the total force. The existing 

part describes, in detail, the specific 

DoD policy, responsibilities, and 

procedures that enable and substantiate 

OCS and enable both the DoD and its 

commercial partners to plan for 

contractor support when operating with 

U.S. Armed Forces in applicable 

operations. Contractors are currently 

required to load their employees’ 

information in the Synchronized Predeployment Operational Tracker— 

Enterprise System (SPOT–ES) when an 

employee deploys under a contract to 

support U.S. military operations 

overseas, and this revision neither 

increases nor decreases the burden of 

this requirement. The changes resulting 

from the revised rule increase 

transparency of new policies and better 

inform the DoD’s commercial partners. 

B. Background 

Operational contract support was 

born in the aftermath of significant 

reporting on DoD acquisition and 

contracting operations in Iraq and 

Afghanistan, including the 2008 

‘‘Commission on Army Acquisition and 

Program Management in Expeditionary 

Operations’’ and the 2011 ‘‘Commission 

on Wartime Contracting in Iraq and 

Afghanistan.’’ The Commission on 

Wartime Contracting in Iraq and 

Afghanistan published findings that 

identified deficiencies related to 

contract management and oversight that 

required DoD’s attention. As a result, 

the DoD has invested heavily in efforts 

to address these findings and enhance 

oversight, better define contract 

requirements, and improve the visibility 

and accounting of contractors 

supporting U.S. operations overseas. 

There has been persistent scrutiny of the 

DoD’s progress to close these 

deficiencies, namely by the GAO. The 

GAO has reviewed the Departments’ 

progress on OCS on multiple occasions, 

and classified OCS as a segment within 

the DoD Contract Management High 

Risk Area. In the last report (GAO–19– 

157SP) published in March 2019 

(available at https://www.gao.gov/ 

products/GAO-19-157SP), GAO 

recognized the progress made on OCS 

and affirmed that it could remove its 

high-risk status. Removal could come 

quickly once the DoD successfully 

completes the few remaining GAO 

recommendations. By implementing the 

GAO recommendations, updating 

internal policies especially DoD 

Instruction 3020.41 ‘‘Operational 


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