[Federal Register Volume 71, Number 152 (Tuesday, August 8, 2006)]
[Proposed Rules]
[Pages 45174-45244]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-6622]



[[Page 45173]]

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Part IV





Department of the Interior





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Bureau of Indian Affairs



25 CFR Parts 15, 18, 150, et al.

43 CFR Parts 4 and 30



Indian Trust Management Reform; Proposed Rule

Federal Register / Vol. 71 , No. 152 / Tuesday, August 8, 2006 / 
Proposed Rules

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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Parts 15, 18, 150, 152, and 179

Office of the Secretary

43 CFR Parts 4 and 30

RIN 1076-AE59


Indian Trust Management Reform

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

ACTION: Proposed rule.

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SUMMARY: The Bureau of Indian Affairs (BIA) and the Office of the 
Secretary propose to amend several of their regulations related to 
Indian trust management to further fulfill the Secretary's fiduciary 
responsibilities to federally recognized tribes and individual Indians 
and to meet the Indian trust management policies articulated by 
Congress in the Indian Land Consolidation Act (ILCA), as amended by the 
American Indian Probate Reform Act of 2004 (AIPRA). These amendments 
address Indian trust management issues in the areas of probate, probate 
hearings and appeals, tribal probate codes, life estates and future 
interests in Indian land, the Indian land title of record; and 
conveyances of trust or restricted land. There is also an ``Application 
for Consolidation by Sale'' form that is associated with one of these 
amendments.

DATES: Please submit your comments by October 10, 2006.

ADDRESSES: You may submit comments, identified by the number 1076-AE59, 
by any of the following methods:

--Federal rulemaking portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
--Web site at http://www.doitrustregs.com.
--E-mail: <a href="/cdn-cgi/l/email-protection#1855717b707d747d475e474b71767f7d6a5871776b367c7771367f776e"><span class="__cf_email__" data-cfemail="da97b3b9b2bfb6bf859c8589b3b4bdbfa89ab3b5a9f4beb5b3f4bdb5ac">[email protected]</span></a>. Include the number 1076-AE59 
in the subject line of the message.
--Fax: (202) 208-5320. Include the number 1076-AE59 in the subject line 
of the message.
--Mail: U.S. Department of the Interior, 1849 C Street, NW., Mail Stop 
4141, Washington, DC 20240
--Hand delivery: Michele Singer, U.S. Department of the Interior, 1849 
C Street, NW., Washington, DC 20240.

    Comments on the information collection burdens, including comments 
on or requests for copies of the ``Application for Consolidation by 
Sale'' form, are separate from those on the substance of the rule. Send 
comments on the information collection burdens to: Interior Desk 
Officer 1076-AE59, Office of Management and Budget, e-mail: <a href="/cdn-cgi/l/email-protection#dfb0b6adbe80bbb0bcb4baab9fb0b2bdf1bab0aff1b8b0a9"><span class="__cf_email__" data-cfemail="d8b7b1aab987bcb7bbb3bdac98b7b5baf6bdb7a8f6bfb7ae">[email protected]</span></a>; or 202/395-6566 (fax). Please also send a copy of 
your comments to BIA at the location specified under the heading 
ADDRESSES.

FOR FURTHER INFORMATION CONTACT: Michele Singer, Counselor to the 
Assistant Secretary--Indian Affairs, Department of the Interior, Bureau 
of Indian Affairs, 1849 C Street NW., Mail Stop 4141, Washington, DC 
20240, telephone (202) 273-4680.

SUPPLEMENTARY INFORMATION:

I. Statutory Authority
II. Background
    A. History of the Rule
    B. The Need for this Proposed Rulemaking
    C. Development of Proposed Reguatory Language
    D. Status of Other Indian Trust Management Reform Regulations
III. Overview of Proposed Rule
IV. Part-by-Part Analysis
    A. 25 CFR Part 15
    B. 25 CFR Part 18
    C. 25 CFR Part 150
    D. 25 CFR Part 152
    E. 25 CFR Part 179
    F. 43 CFR Part 4
    G. 43 CFR Part 30
V. Public Comments
    A. Comments Received Prior to This Publication
    B. Directions for Submitting Comments
VI. Procedural Requirements
    A. Regulatory Planning and Review (Executive Order 12866)
    B. Regulatory Flexibility Act
    C. Small Business Regulatory Enforcement and Fairness Act
    D. Unfunded Mandates Reform Act of 1995
    E. Governmental Actions and Interference with Constitutionally 
Protected Property Rights (Executive Order 12630)
    F. Federalism (Executive Order 13132)
    G. Civil Justice Reform (Executive Order 12988)
    H. Paperwork Reduction Act
    I. National Environmental Policy Act (NEPA)
    J. Government-to-Government Relationships with Tribes (Executive 
Order 13175)
    K. Energy Effects (Executive Order 13211)

I. Statutory Authority

    Regulatory amendments to these parts are proposed under the 
general authority of the Trust Fund Management Reform Act of 1994, 
25 U.S.C. 4021 et seq., and the Indian Land Consolidation Act of 
2000 (ILCA) as amended by the American Indian Probate Reform Act of 
2004 (AIPRA), 25 U.S.C. 2201 et seq. The following table provides 
additional statutory authority specific to each CFR part.

 
25 CFR part 15....................  5 U.S.C. 301; 25 U.S.C. 2, 9, 372-
                                     74, 410; 44 U.S.C. 3101 et seq.
25 CFR part 18....................  5 U.S.C. 301; 25 U.S.C. 2, 9, 372-
NEW-Tribal Probate Codes..........   74, 410; 44 U.S.C. 3101 et seq.;
                                     Pub. L. 108-374 (American Indian
                                     Probate Reform Act of 2004).
25 CFR part 150...................  Act of June 30, 1834 (4 Stat. 738;
                                     25 U.S.C. 9). Act of July 26, 1892
                                     (27 Stat. 272; 25 U.S.C. 5).
                                     Reorganization Plan No. 3 of 1950
                                     approved June 20, 1949 (64 Stat.
                                     1262). (Act of April 26, 1906 (34
                                     Stat. 137); Act of May 27, 1908 (35
                                     Stat. 312); Act of August 1, 1914
                                     (38 Stat. 582, 598) deals
                                     specifically with land records of
                                     the Five Civilized Tribes. Act of
                                     February 14, 1920 (41 Stat. 415)
                                     amended March 1, 1933 (47 Stat.
                                     1417; 25 U.S.C. 413); 5 U.S.C.
                                     552a; and 31 U.S.C. 9701.
25 CFR part 152...................  R.S. 161; 5 U.S.C. 301. Interpret or
                                     apply sec. 7, 32 Stat. 275, 34
                                     Stat. 1018, sec. 1, 35 Stat. 444,
                                     sec. 1 and 2, 36 Stat. 855, as
                                     amended, 856, as amended, sec. 17,
                                     39 Stat. 127, 40 Stat. 579, 62
                                     Stat. 236, sec. 2, 40 Stat. 606, 68
                                     Stat. 358, 69 Stat. 666: 25 U.S.C.
                                     378, 379, 405, 404, 372, 373, 483,
                                     355, unless otherwise noted.
25 CFR part 179...................  86 Stat. 530; 86 Stat. 744; 94 Stat.
                                     537; 96 Stat. 2515; 25 U.S.C. 2, 9,
                                     372, 373, 487, 607, and 2201-11;
                                     Pub. L. 108-374 (American Indian
                                     Probate Reform Act of 2004).
43 CFR part 4.....................  5 U.S.C. 301; 43 U.S.C. 1201.
43 CFR part 30....................  5 U.S.C. 301; 43 U.S.C. 1201.
NEW--Probate Hearing Procedures...
 


[[Page 45175]]

II. Background

    This rulemaking is a result of a collaborative, multi-year 
undertaking to identify a comprehensive strategy for improving Indian 
trust management. The Department of the Interior manages Indian trust 
assets in accordance with its fiduciary trust relationship with tribes 
and individual Indians. The term ``tribes'' is used in this preamble to 
refer to Federally recognized tribes. The purpose of today's proposed 
rulemaking is to allow the Department of the Interior to better meet 
its fiduciary trust responsibilities and to carry out the policies 
established by Congress to strengthen tribal sovereignty. This 
rulemaking will provide the Department with the tools to more 
effectively and consistently manage trust assets and better serve its 
trust beneficiaries (i.e., Indian tribes and individual Indians).

A. History of the Rule

    The Department of the Interior has been examining ways to better 
meet its fiduciary trust responsibilities since 1994, when Congress 
passed the Trust Fund Management Reform Act. Throughout this time, the 
Department has sought the participation and input of tribal leaders and 
individual Indian beneficiaries to identify ways in which the 
Department can better serve its beneficiaries.
    In July 2001, the Secretary of the Interior (Secretary) issued 
Secretarial Orders 3231 and 3232. These orders created the Office of 
Historical Trust Accounting (OHTA) to perform historical accounting of 
trust assets and created a temporary Office of the Indian Trust 
Transition (OITT), which was charged with reorganizing the agency to 
better meet beneficiaries'' needs. These Secretarial Orders also stated 
the Secretary's policy to take a more coordinated approach to ensure 
the overall success of trust reform.
    In accordance with this policy, the Department reevaluated its 
approach to trust reform and, in January 2002, embarked on an 
examination and reengineering of its Indian trust management processes. 
This effort differed from prior trust reform efforts because it took a 
comprehensive approach to trust reform, linking individual trust reform 
issues to an overall strategy. To ensure that the strategy fully 
considered tribal concerns, the Department assembled a Joint Task Force 
of tribal representatives and representatives from the Department.
    From members of this Joint Task Force, a subcommittee of both 
tribal representatives and Department representatives was formed. The 
subcommittee met regularly to review the ``As-Is'' processes of the way 
major trust functions were performed at that time. From this ``As-Is'' 
model, the subcommittee identified business goals and objectives the 
Department should meet in fulfilling its trust responsibilities and 
providing improved services to trust beneficiaries. It then developed 
the overall strategy to meet those goals and objectives, documented as 
the Comprehensive Trust Management (CTM) plan.
    The CTM laid the groundwork for trust reform by providing strategic 
direction for development of the ``To-Be'' model, known as the 
Fiduciary Trust Model (FTM). The FTM redesigns trust processes into 
more efficient, consistent, integrated, and fiscally responsible 
business processes. In developing the FTM, the team incorporated years 
of Departmental consultation with tribes. The Department adopted the 
FTM in December 2004 to guide trust reform. Together with Indian 
affairs policies, the FTM forms the basis of today's rulemaking.

B. The Need for This Proposed Rulemaking

    Since adopting the FTM, the Department has formed an FTM 
Implementation Team with tribal representatives. The FTM Implementation 
Team is leading internal organizational changes for improving 
performance and accountability in management of the trust. At the 
beginning of the reengineering process, the Joint Task Force had 
anticipated that regulatory changes would be necessary to fully 
implement trust reform. The Team has since determined, and the 
Secretary has confirmed, that certain regulatory changes are indeed 
needed to enable the Department to fully implement the FTM. Today's 
proposed rule includes many of these necessary regulatory changes.
    Additionally, Congress enacted the American Indian Probate Reform 
Act of 2004. AIPRA amends ILCA to better meet the trust reform goals 
for land consolidation articulated in ILCA. Regulatory changes 
authorized by AIPRA are included in this proposed rule.

C. Development of Proposed Regulatory Language

    This proposed rulemaking encompasses tribal and Departmental 
representatives' efforts on the Joint Task Force, as well as the 
efforts of tribal representatives who have provided comments throughout 
the trust reform process. These efforts guided in-house teams in 
drafting the specific regulatory language included in this proposed 
rulemaking. The in-house teams consisted of Federal personnel from 
Department headquarters and the field, and included program officers 
and Department attorneys possessing extensive expertise in probate, 
land titles and records, acquisition and conveyance, leasing and 
grazing, and administrative appeals. On December 27, 2005, the 
Department shared advance copies of the proposed regulatory language 
(identified as ``preliminary drafts'' throughout this preamble) with 
leaders of each Federally recognized tribal government, as well as 
additional contacts in Indian country, for their input and 
recommendations. The Department has also presented the preliminary 
drafts and obtained the input of tribes at two formal consultation 
meetings: one in Albuquerque, New Mexico on February 14-15, 2006, and 
one in Portland, Oregon on March 29, 2006. Comments received during 
these consultations and in the time leading up to this publication have 
identified several issues that the Department considered in revising 
the preliminary drafts for publication as a proposed rule. In 
accordance with the government-to-government relationship with tribes, 
formal consultations are also being scheduled to take place during the 
comment period that follows this publication in the Federal Register to 
facilitate an informed final rule. See Section IV, Public Comments, for 
details on upcoming consultations.

D. Status of Other Indian Trust Management Reform Regulations

    The Department is also developing regulatory amendments to land 
acquisitions (25 CFR part 151), leasing (25 CFR part 162), and grazing 
(25 CFR part 166), and developing draft regulatory language addressing 
trust fund accounting and appeals (new CFR part), unclaimed moneys/
whereabouts unknown (new CFR part), and fees for service (new CFR 
part). Based on input received during the February 14-15, 2006, 
Albuquerque tribal consultation session, the Department has determined 
that these regulations require additional work before publication as a 
proposed rule. The Department plans to promulgate these additional 
regulations at some point in the future. Together, these regulatory 
changes will provide the Department with the tools it needs to better 
serve beneficiaries and will standardize procedures for consistent

[[Page 45176]]

execution of fiduciary responsibilities across BIA Regions.

III. Overview of Proposed Rule

    The proposed rule amends various parts of the CFR to further 
implement Indian trust management reform and meet the policies 
expressed by Congress in ILCA, as amended by AIPRA. Together, these 
amendments form an integrated approach to Indian trust management 
related to probate, land records and title documents, and conveyances 
that allow the Department to better meet the needs of its 
beneficiaries.
    The Department has revised many of these regulations, in accordance 
with the Plain Language Initiative (63 FR 31885 (June 10, 1998)) to 
facilitate ease of use and public comprehension.
    In addition to making plain language revisions, amendments revise 
the regulations to:
    <bullet> Incorporate AIPRA changes to probate: AIPRA created a 
uniform probate code to standardize intestate succession rules for 
trust and restricted property. The uniform probate code reinforces 
tribal sovereignty by eliminating the application of state laws in the 
probate of trust and restricted assets while deferring to approved 
tribal probate codes. AIPRA also established new mechanisms for 
consolidating fractionated interests at probate and through sale of 
highly fractionated tracts. The proposed amendments to probate 
regulations would implement AIPRA's provisions by requiring the 
additional information needed to determine heirs and devisees to be 
included in the probate file, and by establishing the procedures for 
directional disclaimers, purchases at probate and consolidation 
agreements. These regulations continue to refer all probate cases to 
OHA. The amendments streamline the OHA process by shortening deadlines 
to more reasonable time periods. Amendments to life estate provisions 
reflect AIPRA's change in the valuation of a life estate to be 
``without regard to waste'' and base the valuation on the four-year 
average Single Life Factor used by the U.S. Internal Revenue Service in 
Table S of the 7520 rate schedule, without regard to gender.
    <bullet> Promote consolidation (reduce fractionation) of interests: 
Allotments owned by Indians have become increasingly fractionated with 
the probate of each generation, resulting in the division of the 
allotment into smaller and smaller interests. These amendments meet the 
policy expressed by Congress to reduce fractionation (i.e., the 
exponential increase in the number of ownership interests in a given 
parcel of land) of tribal and individual Indian interests in trust and 
restricted property through the use of several tools. These tools 
include the opportunities for tribes to establish a tribal land 
consolidation plan; purchase interests in land within their respective 
jurisdictions when offered for negotiated sale, gift, or exchange; make 
a tribal tract purchase (i.e., obtain fractionated interests of non-
consenting trust and restricted owners under certain circumstances); 
and unify ownership and consolidate interests in a tract through 
partition. The amendments allow both tribes and individual Indians to 
obtain highly fractionated interests through a new mechanism, created 
by AIPRA: consolidation by sale (called ``partition of highly 
fractionated lands'' in AIPRA). Additionally, the new AIPRA mechanisms 
being incorporated in probate regulations will offer opportunities to 
reduce fractionation through the distribution of probate property.
    <bullet> Improve service to beneficiaries: Amendments to the Land 
Titles and Records Office (LTRO) regulations will update and 
standardize LTRO title practices and recordation to ensure the 
Secretary is able to accurately track and record accounting of trust 
and restricted interest owners, allowing the Secretary to better serve 
the beneficiaries. Amendments to the probate process are aimed at 
facilitating the process to reduce the probate backlog and better serve 
beneficiaries. By clarifying the requirements and processes for 
probate, approval of tribal probate codes, obtaining LTRO services and 
products, and conveying trust and restricted property, the Department 
improves communication and transparency, allowing better service to 
beneficiaries.
    The Department is committed to fully explaining both the purpose 
and intended effects of these regulations in this preamble. More 
detailed explanations of each part are provided below, followed by 
summaries of comments received during tribal consultations on the 
preliminary drafts of these regulations. The Department welcomes any 
questions or comments requesting clarification of these parts, as well 
as additional comments. Additionally, upon finalization of any of these 
regulations, the Department plans to develop training and other 
explanatory materials, where appropriate, to facilitate transparency in 
implementation of these regulations.

IV. Part-by-Part Analysis

    The following sections provide a description of the amendments with 
respect to each CFR part and provide distribution tables listing what 
current CFR sections are proposed for change, the new (i.e., proposed) 
CFR section, and a description of the proposed changes. Because this 
proposed rule incorporates changes made to the preliminary drafts, 
which were distributed to tribes in December 2005, the following part-
by-part analysis includes a discussion of major changes made to each 
preliminary draft of the CFR part in response to comments.

A. 25 CFR Part 15

    The purpose of this part is to describe the authorities, policies 
and procedures the BIA (or tribe that has contracted or compacted to 
fulfill probate functions) uses to prepare a probate file for an Indian 
decedent's trust estate, except for restricted land derived from 
allotments made to members of the Five Civilized Tribes (Cherokee, 
Choctaw, Chickasaw, Creek and Seminole) in Oklahoma.
    Amendments to this part revise several subsections to ensure that 
the probate file delivered to OHA for adjudication is as complete as 
possible. By requiring a certification by BIA that they have examined 
certain sources of information and that the file is as complete as 
possible based on those sources of information, the amendments will 
prevent multiple transfers of the probate file between BIA and OHA, 
facilitating the process. Additional changes to the records 
requirements, such as deleting the requirement for a birth certificate, 
are also intended to facilitate the probate process.
    The amendments ensure that information is included in the probate 
file to determine whether heirs and devisees meet the AIPRA definition 
of ``Indian.'' The amendments also incorporate definitions regarding 
AIPRA's new methods for consolidating interests at probate:
    <bullet> Consolidation agreements, which are agreements by the 
decedent's heirs and devisees to consolidate their inherited/devised 
interests in trust and restricted land or consolidate their inherited/
devised interests in land with other interests they already own in 
trust and restricted land; and
    <bullet> Purchase options at probate, which allow eligible 
purchasers to purchase or exchange a decedent's interest in trust or 
restricted land.
    Amendments to this part ensure that the probate file contains 
information necessary for implementation of statutory solutions to 
fractionation set out in 43 CFR part 4, which addresses OHA probate 
hearings. Part 15 prescribes what must be included in a probate package 
and how it will be compiled.

[[Page 45177]]

Changes From Preliminary Draft
    Several tribal commenters questioned why 25 CFR part 15 and 43 CFR 
part 4, which both address the probate process, are in separate CFR 
titles. The Department has determined that because these two parts 
address different agencies--25 CFR part 15 addresses BIA preparation of 
the probate file, and 43 CFR part 4 addresses adjudication of the 
probate file once OHA receives it from BIA--these parts are best kept 
in their respective titles.
    Several commenters suggested that the definitions in both 25 CFR 
part 15 and 43 CFR part 4 should track the definitions as set out in 
ILCA, as amended by AIPRA. The Department has reviewed the regulatory 
definitions, and amended them as appropriate to ensure that they are 
consistent with AIPRA and with 43 CFR parts 4, 30.
    The Department examined and changed terms, as appropriate, to 
ensure consistency with definition of terms in 43 CFR parts 4, 30. The 
Department also amended other terminology as a result of issues raised 
by tribal commenters: for example, it changed ``trust financial 
assets'' and ``cash assets'' to ``trust personalty'' to encompass both 
cash and securities, and it changed ``beneficiaries'' to ``devisees,'' 
which is a more precise term including only those who receive under a 
will. In section 15.8, the Department clarified what is meant by a 
``self-proved will.''
    In response to tribal comments, the Department also significantly 
amended section 15.14. In the preliminary draft, this section had 
provided that, pending probate, the Secretary could take custody and 
control of the estate and take any action he or she determined to be 
necessary for the benefit of the estate, including sale of the land. 
The version of this section being proposed today instead provides 
limited emergency actions that BIA may take when assets in an estate 
may be significantly diminished or destroyed while the probate is 
pending. Each of the emergency actions require a request to or hearing 
before OHA, so no unilateral action may be taken to sell land pending 
probate under this provision.
    At least one tribal commenter objected to the last provision in 
section 15.106 of the preliminary draft, allowing the Secretary to 
request any additional information in support of the probate file. The 
Department has deleted the provision allowing the Secretary to require 
additional information in support of the probate file.
    The Department also clarified when claims against an estate may be 
filed and the deadline for filing such claims in section 15.202.
Distribution Table--25 CFR Part 15
    The following distribution table indicates where each of the 
current regulatory sections in 25 CFR part 15 is located in the 
proposed 25 CFR part 15.

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                                           New
           Current citation              citation               Title                         Remarks
----------------------------------------------------------------------------------------------------------------
15.1.................................         15.1  What is the purpose of this    No change.
                                                     part?
15.2.................................         15.2  What terms do I need to know?  Additional definitions.
                                              15.3  Who can make a will disposing  New section.
                                                     of trust or restricted land
                                                     or trust personalty?
                                              15.4  What are the requirements for  New section.
                                                     my will?
                                              15.5  Can I revoke my will?          New section.
                                              15.6  Can my will be deemed revoked  New section.
                                                     by the operation of the law
                                                     of any state?
                                              15.7  What is a self-proved will?    New section.
                                              15.8  Can I make my will, codicil,   New section.
                                                     or revocation self-proved?
                                              15.9  Do affidavits for my self-     New section.
                                                     proved will, codicil, or
                                                     revocation have to be in a
                                                     certain format?
15.3.................................        15.10  Will the Secretary probate     Clarifies that the Secretary
                                                     all the land or assets in an   will probate only the trust
                                                     estate?                        or restricted property in an
                                                                                    estate.
15.4.................................        15.11  How does the probate process   Administrative changes.
                                                     work?
                                             15.12  What happens if assets in a    New section.
                                                     trust estate may be
                                                     diminished or destroyed
                                                     while the probate is
                                                     pending?
15.101...............................       15.103  How do I begin the probate     Clarifies whom to contact at
                                                     process?                       BIA to inform of a death.
                                            15.104  Does BIA need a death          Clarifies that a death
                                                     certificate to prepare a       certificate should be
                                                     probate file?                  provided and lists
                                                                                    information and documents
                                                                                    that must be provided if no
                                                                                    death certificate is
                                                                                    available.
15.102...............................       15.102  Who may notify BIA of a        Plain language.
                                                     death?
15.103...............................       15.101  When should I notify BIA of a  Plain language.
                                                     death?
15.104, 15.105.......................       15.105  What other documents does BIA  Clarifies that certain
                                                     need to prepare a probate      documents may come from an
                                                     file?                          authority other than a
                                                                                    court. Adds requirement for:
                                                                                    orders requiring payment of
                                                                                    spousal support;
                                                                                    identification of person or
                                                                                    entity in whose favor an
                                                                                    interest is renounced; court
                                                                                    judgments regarding creditor
                                                                                    claims; and place of
                                                                                    enrollment and tribal
                                                                                    enrollment or census number
                                                                                    of the decedent and
                                                                                    potential heirs and
                                                                                    beneficiaries. Deletes
                                                                                    requirement for birth
                                                                                    certificate.
15.106...............................       15.201  Can I get funds from the       Plain language.
                                                     decedent's IIM account for
                                                     funeral services?
15.107...............................       15.107  Who prepares a probate file?   Incorporates new ``probate
                                                                                    staff'' definition.
15.108...............................       15.108  If the decedent was not an     Redesignated. Plain language.
                                                     enrolled member of a tribe
                                                     or was a member of more than
                                                     one tribe, who prepares the
                                                     probate file?

[[Page 45178]]

 
                                            15.106  Can a probate case be opened   New section.
                                                     when an owner of an interest
                                                     has been absent?
15.201...............................       15.301  What will BIA do with the      Clarifies that BIA will also
                                                     documents that I provide?      examine other documents and
                                                                                    information (beyond those
                                                                                    provided) to prepare a
                                                                                    complete probate file and
                                                                                    will transfer the probate
                                                                                    file to OHA.
15.202...............................       15.202  If the decedent owed me        Adds requirements to provide
                                                     money, how do I file a claim   certain additional
                                                     against the estate?            information in support of
                                                                                    claim. Changes deadline for
                                                                                    filing a claim to the
                                                                                    conclusion of the first
                                                                                    hearing rather than 60 days
                                                                                    of verification of death.
15.203...............................       15.302  What items must BIA include    Clarifies what the certified
                                                     in the probate file?           inventory of trust or
                                                                                    restricted real property
                                                                                    should contain. Adds
                                                                                    requirements for supporting
                                                                                    documents.
                                            15.303  When is a probate file         New section.
                                                     complete?
15.301...............................       15.401  What happens after BIA         Redesignated. Deletes
                                                     prepares the probate file?     notification to interested
                                                                                    parties.
15.302...............................       15.402  What happens after the         Adds provisions describing
                                                     probate file is referred to    how BIA will handle claims
                                                     OHA?                           it receives after it refers
                                                                                    the probate file to OHA.
15.303...............................       15.403  What happens after the         Establishes a 30-day time
                                                     probate decision is made?      period to file a written
                                                                                    request for de novo review,
                                                                                    a request for rehearing with
                                                                                    the OHA deciding official,
                                                                                    or an appeal. Establishes
                                                                                    that BIA will not pay
                                                                                    claims, transfer title, or
                                                                                    distribute assets pending a
                                                                                    de novo review, rehearing,
                                                                                    or appeal.
15.401...............................       15.501  How can I find out the status  Clarifies that interested
                                                     of a probate?                  parties may contact the BIA
                                                                                    agency or regional office.
15.402...............................       15.502  Who owns the records           Clarifies that records made
                                                     associated with this part?     by or on behalf of the
                                                                                    United States are owned by
                                                                                    the United States.
15.403...............................       15.503  How must records associated    Redesignated. Plain language.
                                                     with this part be preserved?
                                            15.504  Who may inspect these          Redesignated. Plain language.
                                                     records?
                                            15.505  What information must tribes   Establishes that tribes must
                                                     provide BIA to complete the    provide certain information
                                                     probate file?                  when necessary to complete a
                                                                                    probate file.
                                            15.506  How does the Paperwork         New section.
                                                     Reduction Act affect this
                                                     part?
----------------------------------------------------------------------------------------------------------------

B. 25 CFR Part 18 [NEW]--Tribal Probate Codes

    This new CFR part addresses the process for obtaining Secretarial 
approval of a tribal probate code and lists factors the Secretary will 
consider in reviewing the tribal probate code for approval. While 
tribes have had the authority to adopt their own tribal probate codes 
governing descent and distribution of trust and restricted lands 
located within the tribes' respective reservations or otherwise subject 
to the tribes' jurisdiction, part 18 clarifies that a tribe must obtain 
Secretarial approval of the code. This part lists the factors the 
Secretary will consider in reviewing a tribal probate code and 
establishes when an approved code, repeal, or amendment becomes 
effective. Upon approval, this part requires the tribe to notify tribal 
members of the tribal probate code.
Changes From Preliminary Draft
    The Department made several plain language changes to the 
preliminary draft, which has resulted in combining certain sections and 
rearranging the sections to some degree. The Department added a new 
subsection (b) to section 18.1 to clarify that a tribal probate code 
may provide for a single heir rule that differs from the one provided 
in AIPRA.
    The Department also clarified section 18.8(b) (section 18.9 in the 
preliminary draft) to provide that a tribal probate code or amendment 
will be applied to the estates of decedents who die on or after the 
effective date, rather than the date of approval, of the tribal probate 
code or amendment.
    Finally, tribal commenters objected to section 18.12 of the 
preliminary draft, which provided how tribes should notify their 
members of a tribal probate code or amendment, as an inappropriate 
incursion into tribal sovereignty. The Department has deleted this 
section in its entirety.


    Note: A distribution table is not included here because these 
provisions are entirely new.

C. 25 CFR Part 150--Indian Land Record of Title

    The LTRO determines, maintains, and certifies the title status of 
Indian land and provides various land title products and services to 
individual Indians, tribes, and other members of the public for land 
held in trust or restricted status by the United States. Trust status 
means that title is held by the United States in trust for the benefit 
of an individual Indian or tribe. Restricted status means ownership of 
the property is subject to Federal restrictions against alienation and/
or encumbrance.
    The proposed rule replaces 25 CFR part 150, Land Records and Title 
Documents, in its entirety, to provide clarification of LTRO's 
procedures and increase the ability of the LTRO to provide services and 
products to Indians, tribes, and the public comparable to those 
provided by state and local land records offices. The changes are 
described subpart by subpart, below.
    Subpart A of the proposed rule, Purpose, Definitions, and Public 
Information, clarifies that the

[[Page 45179]]

Department will provide access to the information in the Indian Land 
Record of Title to individual Indians, tribes, and the public, except 
in those instances where access would violate law or policy restricting 
access to such records. The definition of ``Indian land'' is clarified 
to include only lands in trust or restricted status and Federal 
government-owned land that is under the jurisdiction of the BIA, and 
not land held in fee by Indians or fee land subject to the rights, 
occupancy, and use of Indians.
    Subpart B of the proposed rule, The Indian Land Record of Title 
Designation as the Official Record of Indian Land, designates the 
Indian Land Record of Title as the official record of title instruments 
affecting Indian land. The proposed rule clarifies that constructive 
notice of the existence of the title instrument is provided by 
recording the instrument in the Indian Land Record of Title. Recording 
instruments with other Federal or state offices does not provide 
constructive notice with regard to Indian land.
    Subpart C of the proposed rule, LTRO Procedures and Requirements to 
Record Instruments in the Indian Land Record of Title, designates the 
LTRO as the organization within the Federal government that has the 
responsibility to maintain the Indian Land Record of Title. This 
subpart describes the LTRO process for receiving and recording title 
and the process for correcting an error or omission in an LTRO product 
or service.
    Subpart D of the proposed rule, Services and Products of the LTRO, 
describes the types of services and products offered by the LTRO. 
Subpart D also proposes charging fees to certain parties for the 
services and products provided by LTRO. The proposed fees implement the 
authority contained in 25 U.S.C. 413 and address a Congressional 
directive, in 31 U.S.C. 9701, for agencies to begin charging fees that 
are fair and reasonable based upon the value of the service provided by 
the Federal office. Under 25 U.S.C. 14b, the Secretary may order that 
such funds be directed to the appropriation account for the LTRO. A fee 
schedule will be published as a notice separate from this proposed 
rule. The proposed rule specifies exceptions to the fee.
    These proposed provisions will provide a greater benefit to 
individual Indians, tribes, and the public through clarification of 
LTRO procedures and will improve LTRO's ability to serve beneficiaries.
Changes From Preliminary Draft
    Since distribution of the preliminary draft, the Department made 
several changes to part 150. For example, the Department added cross-
references to 43 CFR part 30 in proposed sections 150.206 and 150.207, 
relating to corrections of final probate records. The proposed part 150 
also moves two sections regarding how to notify the LTRO of an error or 
omission in a service or product from subpart D to subpart C, for 
clarity. (See proposed section 150.208). The Department deleted the 
section in the preliminary draft, ``What certified products does the 
LTRO produce,'' and added the section, ``What services and products may 
I order from the LTRO.'' Additional changes and issues are discussed 
below.
    Terminology: The Department added language to clarify several 
definitions, including ``interest,'' ``Land Titles and Records 
Office,'' ``title,'' and ``title instrument.'' The Department also 
rewrote the definition for ``tribe'' to be consistent with existing 
regulatory definitions for this term.
    Throughout the rule, the Department has modified the terminology to 
clarify that the rights of the individual beneficiary and tribe relate 
to an interest in trust (see also 25 CFR part 179).
    Effect on Tribes that Compact or Contract LTRO Functions: Several 
tribal commenters requested clarification on how this rule affects 
tribes that perform LTRO functions under a contract or compact. Records 
maintained by tribes under such a contract or compact are part of the 
Indian Land Record of Title and must be maintained under the same 
standards and policies. As such, the regulation includes compact and 
contract tribes under the definition of the ``Land Titles and Records 
Office'' for grammatical and textual convenience purposes. The 
inclusion of compact and contract tribes under this definition is not 
intended to reflect a limitation on the sovereignty of these tribes. 
Certain functions performed by the LTRO are inherently Federal 
functions and can only be performed by a government agency. The 
inclusion of the compact and contract tribes in this definition is not 
intended to authorize any such tribe to perform any inherently Federal 
function.
    Access to the Indian Land Record of Title: Several Indian 
commenters raised the issue of access to LTRO information. 
Specifically, these commenters pointed out that they are being denied 
access to LTRO information, sometimes under the auspices of the Privacy 
Act. The rule clarifies that the Indian Land Record of Title is a 
public record but that access is subject to the Privacy Act, Freedom of 
Information Act, and other law or policy restricting access. In some 
instances, portions of a copy of the title instruments must be redacted 
under the Privacy Act to eliminate personal information not otherwise 
included in the Indian Land Record of Title. Additionally, the 
Department may restrict access to reports prepared for the Secretary. 
The LTRO performs functions other than entering information into the 
Indian Land Record of Title and providing copies of maps and title 
instruments--the LTRO also takes the information from the record, 
reviews and examines and draws conclusions about it in preparation of a 
report. Where the LTRO prepares a report for the benefit of the 
Secretary, the Secretary has the discretion to restrict access to the 
report. For example, the public may not obtain a copy of the Probate 
Inventory Report until OHA opens the probate case. While access to the 
Indian Land Record of Title may be restricted by the Freedom of 
Information Act, Privacy Act, or other law or policy, the Department 
believes that in most cases, neither law or policy will restrict access 
to these records by individual Indians or tribes. Generally, 
information included in the Indian Land Record of Title will be 
available to the public without restriction. The Department has also 
clarified that owners of an interest in trust or restricted land within 
the same reservation, the tribe or any person that is leasing, using, 
or consolidating, or is applying to lease, use, or consolidate, such 
trust or restricted land or the interest in trust or restricted lands 
may obtain the following information without regard to the Privacy Act 
and any exemption contained in the Freedom of Information Act: The 
names, mailing addresses, information on the location of the parcel, 
and percentage of the parcel owned by each individual.
    Who Approves Title Instruments: The Department has deleted as 
unnecessary the section regarding who the Federal officials are that 
approve title instruments.
    Fees: Based on input received on the preliminary drafts, the 
Department recognizes that there is strong opposition to requiring 
Indians and tribes to pay for LTRO services and products. Several 
tribal commenters also expressed a preference for charging fees 
exclusively to non-Indians because they believe that providing LTRO 
products and services to non-Indians without charge burdens the LTRO 
and diverts monies from other Indian and tribal programs. The 
Department welcomes continued feedback on the

[[Page 45180]]

proposal for charging fees for LTRO products and services. The 
Department will continue to review ways to maximize the efficiency and 
effectiveness of the products and services provided by the LTRO and 
consider whether charging fees can assist with this effort. The 
Department has removed the fee schedule from the text of the regulation 
and will publish it in a separate notice. This will allow the 
Department to revise the fees without having to amend the rule.
    LTRO Response Time: During tribal consultations, several tribal 
commenters expressed their frustration at what they characterized as 
the slowness of the LTRO in responding to requests to provide services 
and products. The Department is currently undergoing implementation of 
a technological system that will provide a centralized database of the 
Indian Land Record of Title. It is the Department's belief that this 
system will increase the LTRO's ability to respond to requests for 
products and services in a more timely manner. Several tribal 
commenters suggested imposing timelines on the LTRO to respond to 
requests. Due to the complexity and variety of title instruments and 
reports generated from the information in the Indian Land Record of 
Title, the Department is unable to establish a baseline time period. 
Additionally, the Department believes that establishing time frames 
within this regulation would limit the flexibility to amend those time 
frames to reflect changes in processes.
Distribution Table--25 CFR Part 150
    The following distribution table indicates where each of the 
current regulatory sections in 25 CFR part 150 is located in the 
proposed 25 CFR part 150.

----------------------------------------------------------------------------------------------------------------
         Current citation                New citation                 Title                     Remarks
----------------------------------------------------------------------------------------------------------------
150.1............................                    150.1  What is the purpose of     Clarifies purpose by
                                                             this part?                 expanding on the
                                                                                        services and products
                                                                                        LTRO provides.
150.2............................                    150.2  What terms do I need to    Adds several definitions
                                                             know?                      for clarification.
                                                     150.4  Do I have to be an Indian  New section.
                                                             or a tribe to obtain
                                                             products or services
                                                             from the Lands Titles
                                                             and Records Office?
                                                   150.101  Must all title             Designates the Indian
                                                             instruments affecting      Land Record of title as
                                                             Indian land be recorded    the official record of
                                                             in the Indian Land         title instruments
                                                             Record of Title?           affecting Indian land.
                                                                                        Clarifies that recording
                                                                                        with the Indian Land
                                                                                        Record of Title serves
                                                                                        as constructive notice
                                                                                        that the title
                                                                                        instrument exists.
                                                   150.102  Do I have to check with    Clarifies that the Indian
                                                             any other governmental     Record of Land Title is
                                                             office to find title       the source of all
                                                             instruments to Indian      recorded instruments.
                                                             land?
150.3............................                  150.201  Who maintains the Indian   Establishes the LTRO as
                                                             Land Record of Title?      the office responsible
                                                                                        for maintaining the
                                                                                        Indian Land Record of
                                                                                        Title.
150.4............................                  150.202  Where is the LTRO          Indicates that the LTRO
                                                             located?                   has locations throughout
                                                                                        the United States, and
                                                                                        that Bureau offices
                                                                                        maintain contact
                                                                                        information.
150.5............................  .......................  .........................  Deleted.
150.6............................                  150.203  Who submits the title      Clarifies that BIA and
                                                             instruments for            other government offices
                                                             recording?                 may submit title
                                                                                        documents for recording.
                                                                                        Deletes specific
                                                                                        reference to the
                                                                                        Administrative Law Judge
                                                                                        submitting probate
                                                                                        documents.
                                                   150.204  What does the LTRO do      Restates the steps LTRO
                                                             with the instruments       takes when it receives
                                                             that it receives?          documents.
                                                   150.205  What are the minimum       Clarifies requirements
                                                             requirements for           for recording.
                                                             recording a title
                                                             instrument?
150.7............................                  150.206  What if the LTRO           Specifies LTRO procedures
                                                             discovers a defect or      to address defects or
                                                             error in a document?       errors discovered after
                                                                                        recording.
                                                   150.207  What if a defect or error  Restates requirement for
                                                             in a final probate         LTRO notification to
                                                             record cannot be           deciding official for
                                                             corrected?.                non-clerical errors in
                                                                                        probate records.
                                                                                        Establishes that the
                                                                                        corrected document will
                                                                                        be filed in the Indian
                                                                                        Land Record of Title.
                                                                                        Deletes reference to
                                                                                        ``Superintendent'' and
                                                                                        Administrative Law
                                                                                        Judges.
                                                   150.208  How do I correct an error  New section.
                                                             or omission in a title
                                                             instrument or LTRO
                                                             product or service?
                                                   150.209  What instruments qualify   New section.
                                                             for recording in with
                                                             the LTRO?
                                                   150.210  Does the LTRO maintain     New section.
                                                             the original title
                                                             instruments?
                                                   150.211  May I obtain a copy of     New section.
                                                             the title instrument
                                                             from the LTRO?
                                                   150.301  What services and          New section.
                                                             products may I order
                                                             from the LTRO?
150.8............................                  150.302  How do I order services    Discusses how to order
                                                             and products from the      any of LTRO's services
                                                             LTRO?                      and products.
                                                   150.303  Does BIA charge fees for   New section.
                                                             any of the services
                                                             provided by, or products
                                                             produced by, the LTRO?
                                                   150.304  What will the LTRO do if   New section.
                                                             the instrument contains
                                                             information that is
                                                             privileged or protected?

[[Page 45181]]

 
                                                   150.305  How does the Paperwork     New section.
                                                             Reduction Act affect
                                                             this part?
150.9............................  .......................  .........................  Deleted.
150.10...........................                  150.212  Is there any benefit of    Restates that a certified
                                                             obtaining a certified      copy can be used in
                                                             copy of the title?         place of an original in
                                                                                        court or elsewhere.
150.11...........................                    150.3  When can I see land and    Clarifies Department
                                                             title information from     policy to allow public
                                                             the Indian Land Record     access to the Indian
                                                             of Title?                  Land Record of Title.
                                                                                        Deletes provision
                                                                                        regarding nondisclosure
                                                                                        of monetary
                                                                                        consideration and
                                                                                        provision.
----------------------------------------------------------------------------------------------------------------

D. 25 CFR Part 152--Conveyances

    This part establishes the authorities, policy, and procedures 
governing the conveyance of trust or restricted land. Amendments 
reorganize this part to clarify the different procedures and 
requirements applicable to each type of conveyance. The reorganized 
sections incorporate statutory solutions aimed at reducing 
fractionation of interests. One such solution, consolidation by sale, 
is newly established by AIPRA. Consolidation by sale allows one or more 
eligible bidders to consolidate highly fractionated land by buying the 
highly fractionated interests at fair market value through a sale 
conducted by the Secretary. The amendments also:
    <bullet> Provide instances where consent of the trust or restricted 
co-owner is not required to convey a fractional interest, making it 
easier to consolidate interests;
    <bullet> Allow conveyance of land within a tribe's jurisdiction 
without tribal consent where the grantor owns 100% of the tract;
    <bullet> Allow tribes to purchase fractional interests of non-
consenting trust and restricted owners at fair market value (tribal 
tract purchases); and
    <bullet> Clarify that the Secretary will have a lien on income 
derived from any interest purchased for a tribe under the Indian Land 
Consolidation program in the amount of the purchase price, until the 
lien is satisfied or removed by the Secretary.
    The reorganization divides this part into various subparts. 
Proposed subpart A, General Provisions, provides relevant definitions, 
describes to whom the Secretary will provide ownership information 
related to conveyance in this part, and establishes the scope of the 
regulations.
    Subpart B, Sales and Exchanges of Tribal Trust or Restricted Land, 
addresses sales and exchanges of tribal land pursuant to an approved 
tribal consolidation plan and certain exchanges of tribal land. This 
subpart describes what a tribal consolidation plan is, how to obtain 
approval of such a plan, and how to obtain approval of a sale or 
exchange in the absence of tribal consolidation plan.
    Subpart C, Negotiated Sales, Gifts, and Exchanges of Individually 
Owned Lands, addresses conveyances of individually owned trust or 
restricted lands. This subpart provides for a tribal option to purchase 
any trust or restricted interests proposed for sale, gift, or exchange 
to unrestricted fee status.
    Subpart D, Tribal Parcel Purchase, allows tribes to purchase tracts 
of trust or restricted lands where the tribe either owns at least 50% 
of the undivided interests in the tract or has obtained the consent of 
the co-owners of at least 50% of the undivided interests in the tract, 
subject to the right of an individual owner in possession of the tract 
to preempt the purchase.
    Subpart E, Consolidation by Sale of Highly Fractionated Parcels, 
incorporates the new consolidation mechanism authorized by AIPRA. 
Consolidation by sale allows eligible bidders to consolidate interests 
in highly fractionated parcels where certain consents are obtained. 
This subpart also provides the procedures for conducting the sale by 
public auction or sealed bid. There is an ``Application for 
Consolidation by Sale'' form associated with this subpart. To obtain a 
copy of the information collection request submission to OMB or a copy 
of the form, send your request to the address related to information 
collections listed in ADDRESSES.
    Subpart F, Partitions in Kind, authorizes the Secretary to 
subdivide trust and restricted land with multiple owners into smaller 
tracts in which the interests of the owners are unified or 
consolidated. This subpart allows any owner of a fractionated interest 
to apply to the Secretary for partition.
    Subpart G, Mortgages and Deeds of Trust, allows the Secretary to 
approve mortgages or deeds of trust encumbering individually owned land 
under certain circumstances.
    Much of the current regulatory language is redesignated into 
subpart H, Patents in Fee, Certificates of Competency, and Orders 
Removing Restrictions, and subpart I, Special Provisions applicable to 
Osage and the Five Civilized Tribes.
Changes From Preliminary Draft
    The Department made several changes to the preliminary draft of 25 
CFR part 152. Many of the changes are intended to clarify and make 
terminology consistent.
    Definitions: The Department deleted the definitions for 
``competent'' and ``contiguous'' and added definitions for ``fair 
market value,'' ``family farm,'' and ``owner(s).'' The Department 
revised the definition for ``Indian.''
    Land Consolidation Plans: The preliminary draft had included a 
section stating that a tribal land consolidation plan may identify for 
purchase only lands contiguous to the reservation or otherwise subject 
to tribal jurisdiction. Several tribal commenters objected to the 
provision stating that the tribal land consolidation plan may identify 
for purchase only those lands that are located within or contiguous to 
the tribe's reservation boundaries, or otherwise subject to tribal 
jurisdiction. One tribal commenter stated that because it does not have 
fixed exterior reservation boundaries, this provision would prevent it 
from acquiring other lands which are in the vicinity of its separate 
trust parcels, but which are not within or contiguous to that tribe's 
``reservation boundaries.'' A few tribal commenters stated that this 
limitation is substantive and is not contained in ILCA section 2203, 
and therefore should not be imposed by regulation. Another tribal 
commenter stated that this severely limits the unrestricted fee lands 
the tribe can purchase. The Department has deleted this restriction. 
Additionally, the Department has deleted the definition of 
``contiguous'' since this deleted provision was the only appearance of 
the term ``contiguous'' in the regulation.
    Several tribal commenters also noted that the tribal land 
consolidation plan conditions effectively require tribes to pre-
identify every transaction to be carried out under the plan--whether 
for sale, purchase, or exchange. These commenters noted that this 
requirement

[[Page 45182]]

would cause the tribe to submit new plans or plan amendments for every 
such transaction. These commenters also asserted that this requirement 
will result in significant price inflation and force tribes to pay more 
for those targeted tracts than would be the case without the proposed 
pre-identification requirement. The Department has replaced the 
requirement for specifically identifying sales, purchases, and 
exchanges with a requirement that the plan include a description and 
map of the general area of the sales, purchases, and exchanges.
    Several tribal commenters opposed the requirement for approval of a 
tribal land consolidation plan as an intrusion on tribal sovereignty. 
Submission of a tribal land consolidation plan is optional and within 
the tribe's discretion. However, an approved land consolidation plan 
will allow a tribe to sell parcels of its trust land in connection with 
an overall plan to consolidate its land holdings and/or decrease 
fractionation. Pursuant to federal law, sales under an approved 
consolidation plan may also be at slightly less than fair market value. 
If the tribe has no plans to sell its trust land, though, there is no 
need for it to prepare or submit a land consolidation plan for 
approval.
    Finally, the Department clarified the process for sales and 
exchanges with a land consolidation plan and without a land 
consolidation plan.
    Sales and Exchanges: The Department revised section 152.210 
(section 152.211 of the preliminary draft) to clarify that a grantor 
may waive the right to be notified of fair market value only if the 
grantee is Indian, among the other criteria. The Department also 
deleted section 152.212 of the preliminary draft, addressing 
requirements for appraisals to determine fair market value because the 
proposed draft instead incorporates the requirements into the new 
definition of ``fair market value.''
    Several tribal commenters questioned the meaning of the provision, 
``trust or restricted land may only be conveyed to a grantee in 
unrestricted fee status, where all of the trust or restricted interests 
in the tract are being conveyed'' in section 152.205 (section 152.206 
of the preliminary draft). The Department has deleted this phrase and 
clarified that the Indian tribe with jurisdiction will receive notice 
and has the option to purchase.
    The preliminary draft provided that tribal consent for conveyance 
would be required if a law affecting probate and inheritance rights was 
in effect. The Department revised this section to clarify that tribal 
consent of a conveyance is required if the tribe enacted a law 
requiring consent.
    The preliminary draft required the tribe to purchase the fractional 
interest where it fails to promptly consent to the sale. The Department 
has removed that provision from the regulation.
    Several tribal commenters questioned use of the U.S. Department of 
Justice (DOJ) title standards. The Department deleted this reference 
and instead refers generally to Department of the Interior boundary 
standards.
    Several tribal commenters objected to the proposed provision 
allowing the Secretary to liquidate off-reservation interests and allow 
a tribe to purchase an on-reservation interest where the transfer 
creates a different pattern of jurisdiction or aggravates existing 
jurisdictional conflicts. This commenter stated that this is contrary 
to the Federal policy of Indian self-determination. Another commenter 
stated that a distinction should be made between trust interests and 
restricted interests because tribes have a jurisdictional 
responsibility upon acquisition of the beneficial interest in trust 
parcels. The Department has deleted this section.
    Tribal Tract Purchases: Two tribal commenters expressed confusion 
over the provision stating that tribal tract purchase authority does 
not extend to ``purchases that are limited to any such fractional 
interests held in unrestricted fee status.'' The Department has deleted 
this provision and clarified that tribal tract purchases may include 
conveyances to the tribe of interests held in fee and that fee 
interests are included in the calculation to determine whether the 
tribe owns at least 50% of the tract. With regard to providing notice 
of a tribal tract purchase to owners whose whereabouts are unknown, the 
Department has lengthened the time before the closing of the sale that 
publication in a paper can occur from 30 days to 90 days. The 
Department has also clarified what action it will take if it does not 
approve the appraisal for a tribal tract purchase.
    Consolidation by Sale: Several tribal representatives commented on 
the fact that an individual holding the largest ownership interest in 
the tract, and 20% or greater of the ownership interests in the tract, 
has a right to match the highest bid. The Department has not made any 
substantive changes to these provisions because they are prescribed by 
AIPRA. One tribal commenter stated that the regulation should clarify 
that both trust and fee interests are subject to consolidation by sale. 
The Department has clarified this in section 152.402. Another tribal 
commenter asked whether a fee interest owner would be able to trigger a 
consolidation by sale. Proposed section 152.403 entitles only 
``eligible bidders'' to submit applications for consolidation by sale. 
A fee owner may submit an application if he or she meets one of the 
categories for ``eligible bidder.'' Finally, the Department revised the 
definition of ``bona fide'' and made other clarifications.
    Partition in Kind: The Department simplified section 152.501, 
establishing what tracts may be partitioned and deleted the provision 
excluding partitions of restricted land in Alaska. The preliminary 
draft included a provision at section 152.606(b) stating that the tribe 
will not have the right of first refusal where encumbered land is 
purchased as a result of a foreclosure or sale proceeding. Several 
tribal commenters asserted that the tribe should have the right to 
purchase interests that are to be foreclosed and are to be taken into 
unrestricted fee status. The Department has deleted this provision and 
instead states that title will be taken in accordance with laws 
applicable to the foreclosure or sale proceeding.
Distribution Table--25 CFR Part 152
    The following distribution table indicates where each of the 
current regulatory sections in 25 CFR part 152 is located in the 
proposed 25 CFR part 152.

----------------------------------------------------------------------------------------------------------------
                                           New
          Current  citation              citation               Title                         Remarks
----------------------------------------------------------------------------------------------------------------
                                             152.1  What does this part do?        New section.
152.1................................        152.2  What terms do I need to know?  Adds and amends definitions.
                                             152.3  Will the Secretary provide     New section.
                                                     ownership information?
                                             152.4  To whom will the Secretary     New section.
                                                     provide ownership
                                                     information?
                                             152.5  Which subparts do not apply    New section.
                                                     to Alaska?

[[Page 45183]]

 
152.2................................      152.101  What transactions are covered  Incorporates AIPRA principles
                                                     by this subpart?               by clarifying that the
                                                                                    Secretary will only approve
                                                                                    sales of tribal land when
                                                                                    made in accordance with a
                                                                                    consolidation plan.
                                           152.102  What must a land               New section. Lists items that
                                                     consolidation plan include?    must be included in a tribal
                                                                                    land consolidation plan.
                                           152.103  Are there any restrictions on  New section.
                                                     a land consolidation plan?
                                           152.104  How does the Secretary         New section.
                                                     approve a land consolidation
                                                     plan?
                                           152.105  How does a tribe receive       New section.
                                                     approval for a sale or
                                                     exchange under a land
                                                     consolidation plan?
                                           152.106  How may the tribe use the      New section.
                                                     proceeds of a sale or
                                                     exchange?
                                           152.107  In the absence of an approved  New section.
                                                     land consolidation plan, how
                                                     does a tribe get approval
                                                     for an exchange of tribal
                                                     land?
                                           152.108  What criteria will the         New section.
                                                     Secretary use to determine
                                                     whether to approve an
                                                     exchange?
152.3................................  ...........  .............................  Deleted.
152.4................................      152.701  Application for patent in fee  Redesignated.
152.5................................      152.702  Issuance of patent in fee....  Redesignated.
152.6................................      152.703  Issuance of patents in fee to  Redesignated.
                                                     non-Indians and Indians with
                                                     whom a special relationship
                                                     does not exist.
152.7................................      152.704  Application for certificate    Redesignated.
                                                     of competency.
152.8................................      152.705  Issuance of certificate of     Redesignated.
                                                     competency.
152.9................................      152.801  Certificates of competency to  Redesignated.
                                                     certain Osage adults.
152.10...............................      152.802  Application for orders         Redesignated.
                                                     removing restrictions,
                                                     except Five Civilized Tribes.
152.11...............................      152.803  Issuance of orders removing    Redesignated.
                                                     restrictions, except Five
                                                     Civilized Tribes.
152.12...............................      152.804  Removal of restrictions, Five  Redesignated.
                                                     Civilized Tribes, after
                                                     application under authority
                                                     other than section 2(a) of
                                                     the Act of August 11, 1955.
152.13...............................      152.805  Removal of restrictions, Five  Redesignated.
                                                     Civilized Tribes, after
                                                     application under authority
                                                     of section 2(a) of the Act
                                                     of August 11, 1955.
152.14...............................      152.806  Removal of restrictions, Five  Redesignated.
                                                     Civilized Tribes, without
                                                     application.
152.15...............................      152.807  Judicial review of removal     Redesignated.
                                                     restrictions, Five Civilized
                                                     Tribes, without application.
152.16...............................      152.808  Effect of order removing       Redesignated.
                                                     restrictions, Five Civilized
                                                     Tribes.
152.17, (152.18).....................      152.203  Who may convey an interest in  Clarifies who may convey
                                                     trust or restricted land?.     interests with Secretarial
                                                                                    approval.
152.19...............................  ...........  .............................  Deleted.
152.20...............................  ...........  .............................  Deleted.
152.21...............................      152.201  What lands are covered by      Clarifies scope of subpart.
                                                     this subpart?
                                           152.202  What transactions are covered  Clarifies scope of subpart.
                                                     by this subpart?
152.22...............................  ...........  .............................  Deleted.
                                           152.204  Who can receive an interest    New section.
                                                     in trust or restricted
                                                     lands?
                                           152.205  What restrictions apply to a   New section.
                                                     conveyance of trust or
                                                     restricted land to fee
                                                     status?
152.23...............................      152.206  How does an owner initiate a   Clarifies what a written
                                                     negotiated sale, gift, or      request for negotiated sale,
                                                     exchange?                      gift, or exchange must
                                                                                    include.
                                           152.207  Does a conveyance of a         New section.
                                                     fractional interest require
                                                     the consent of the co-
                                                     owner(s)?
                                           152.208  Is tribal consent required to  New section.
                                                     convey an interest in trust
                                                     or restricted land located
                                                     within the tribe's
                                                     jurisdiction?
152.24...............................      152.210  When must fair market value    Establishes circumstances in
                                                     be determined and provided     which grantor may waive
                                                     to the grantor?                right to be provided with
                                                                                    information as to the fair
                                                                                    market value.
152.25...............................      152.209  Is payment required for a      Removes restrictions for
                                                     negotiated sale, exchange,     conveyances at less than
                                                     or gift?                       fair market value because
                                                                                    152.210 entitles the grantor
                                                                                    to full information
                                                                                    regarding the fair market
                                                                                    value.
                                           152.211  When must the Secretary        New section.
                                                     receive payment for the
                                                     conveyance of the land?
                                           152.212  How does the Secretary decide  New section.
                                                     to approve a negotiated
                                                     sale, gift, or exchange?
                                           152.213  How does the negotiated sale   New section.
                                                     or exchange occur?
                                           152.214  When is a negotiated sale,     New section.
                                                     gift, or exchange effective?
                                           152.215  How does an Indian Land        New section.
                                                     Consolidation Program lien
                                                     attach?

[[Page 45184]]

 
                                           152.216  How is an Indian Land          New section.
                                                     Consolidation Program lien
                                                     removed?
                                           152.217  When can a co-owner acquire    New section.
                                                     an interest previously
                                                     acquired on behalf of the
                                                     tribe?
                                           152.218  What if there are liens or     New section.
                                                     other encumbrances on the
                                                     lands to be conveyed?
                                           152.301  What lands are covered by      New section.
                                                     this subpart?
                                           152.302  What transactions are covered  New section.
                                                     by this subpart?
                                           152.303  How does a tribe apply for a   New section.
                                                     parcel purchase?
                                           152.304  How and when will owners be    New section.
                                                     notified of an application
                                                     for tribal parcel purchase?
                                           152.305  Can an individual owner        New section.
                                                     preempt and succeed a
                                                     tribe's right to purchase?
                                           152.306  How and when will the          New section.
                                                     Secretary review an
                                                     application for parcel
                                                     purchase?
                                           152.307  How and when will the          New section.
                                                     conveyance instrument be
                                                     executed?
                                           152.401  What terms do I need to know?  New section.
                                           152.402  What lands are subject to      New section.
                                                     consolidation by sale?
                                           152.403  How do I apply to consolidate  New section.
                                                     a parcel by sale?
                                           152.404  What must the Secretary do     New section.
                                                     before acting on an
                                                     application for
                                                     consolidation by sale?
                                           152.405  What consents are necessary    New section.
                                                     for a consolidation by sale?
                                           152.406  How will the Secretary notify  New section.
                                                     owners of the consolidation
                                                     proceeding?
                                           152.407  What action does the           New section.
                                                     Secretary take on comments
                                                     or objections?
                                           152.408  What happens if the Secretary  New section.
                                                     orders a new appraisal?
                                           152.409  How can an owner appeal a      Limits discussion of
                                                     consolidation by sale          advertising to consolidation
                                                     proceeding?                    by sale.
152.26...............................      152.410  How will the Secretary notify  Limits discussion of
                                                     owners of a sale after         advertised sale to
                                                     appeals have been decided?     consolidation by sale.
152.27...............................      152.411  Who may participate in an      New section.
                                                     auction or sealed bid sale?
                                           152.412  How does a tribe reserve its   New section.
                                                     right to match the highest
                                                     bid?
152.28...............................      152.413  How will the Secretary         New section.
                                                     determine the successful
                                                     bidder?
152.29...............................      152.414  What happens if no bid         Deletes provisions allowing
                                                     matches the fair market        the Secretary to reject
                                                     value?                         bids.
152.30...............................  ...........  .............................  Deleted.
                                           152.415  When must the highest bidder   New section.
                                                     pay for the purchase?
                                           152.416  How will proceeds be           New section.
                                                     distributed?
                                           152.417  Is Federal financial           New section.
                                                     assistance available to
                                                     support a bidder's purchase?
                                           152.418  What title is acquired?        New section.
152.31...............................  ...........  .............................  Deleted.
152.32...............................      152.219  How does a transaction affect  Plain language.
                                                     collection of construction
                                                     costs for irrigation
                                                     projects?
152.33...............................  ...........  .............................  Deleted. See subpart F.
152.34...............................  ...........  .............................  Deleted. See subpart G.
152.35...............................  ...........  .............................  Deleted.
----------------------------------------------------------------------------------------------------------------
                                          Subpart F--Partitions in Kind
----------------------------------------------------------------------------------------------------------------
                                           152.501  What lands are covered by      New section
                                                     this subpart?
                                           152.502  When does this subpart apply?  New section.
                                           152.503  How can an owner initiate a    New section.
                                                     partition action?
                                           152.504  How will we notify the         New section.
                                                     applicant's co-owners of an
                                                     application for partition?
                                           152.505  How and when will we review    New section.
                                                     an application?
                                           152.506  When will we execute the       New section.
                                                     conveyance instruments?
----------------------------------------------------------------------------------------------------------------
                                     Subpart G--Mortgages and Deeds of Trust
----------------------------------------------------------------------------------------------------------------
                                           152.601  What does this subpart do?     New section.
                                           152.602  How do owners submit an        New section.
                                                     application for approval of
                                                     a mortgage or deed of trust?
                                           152.603  How will the Secretary review  New section.
                                                     the application?
                                           152.604  How may the mortgage or deed   New section.
                                                     of trust be enforced?
                                           152.605  Does the land remain in trust  New section.
                                                     as a result of foreclosure
                                                     or sale?
                                           152.606  How does the Paperwork         New section.
                                                     Reduction Act affect this
                                                     part?
----------------------------------------------------------------------------------------------------------------


[[Page 45185]]

E. 25 CFR Part 179--Life Estates and Present and Future Interests

    This regulation sets forth the authorities, policy and procedures 
governing the administration of life estates and future interests in 
Indian lands by the Secretary of the Interior.
    Amendments to this part explicitly identify the rights and 
responsibilities of the life tenant, and define the life tenant's share 
of income, contract bonuses, and royalties derived from the use of the 
land and the extraction of minerals or other resources from the land. 
AIPRA established that life estates are ``without regard to waste,'' 
meaning that the life tenant is entitled to all income, contract 
bonuses, and royalties derived from use of the land and extraction of 
resources. The amendments to this part incorporate this change, 
providing that all life estates created after June 20, 2006, will be 
entitled to all income, contract bonuses, and royalties, in the absence 
of an order, conveyance document, or written agreement specifying 
otherwise.
    The amendments delete the Single Life Factor table for determining 
the respective values of a life estate and remainder share and instead 
refer to Actuarial Table S, Valuation of Annuities, obtained from 26 
CFR 20.2031. The amendments also eliminate the distinction between the 
genders in determining the value of a life estate; the current 
regulations generally value life estates held by females higher than 
those held by males.
    New sections address several topics that allow the Department to 
determine the type of estate and interest in which a beneficial 
interest may be held, to ensure that the holder of a life estate, the 
measuring life for a life estate, the holder of a future interest, and 
class members can be ascertained in all cases, including when the 
conveyance document or probate order includes conditions. The 
amendments also address the termination and renunciation of life 
estates, establish why notification to BIA of the death of a life 
tenant is important, and establish that term estates will be treated in 
the same manner as life estates for the purposes of distributing 
income, cash bonus, and principal.
Changes From Preliminary Draft
    The Department added several new definitions, including ``class,'' 
``condition,'' ``contingent remainder,'' ``conveyance document,'' 
``estate,'' ``executory interest,'' ``extant person,'' ``grantee,'' 
``grantor,'' ``holder,'' ``life tenant,'' ``open class,'' ``order,'' 
``present interest,'' ``remainderman,'' ``reversionary interest,'' 
``Secretary,'' ``term estate,'' and ``vested.'' The Department also 
added several sections and expanded others since it released the 
preliminary draft of part 179.
    Effect of State Law: The preliminary draft stated that the 
Department would look to state law for guidance in the absence of 
Federal law or Federally approved tribal law. This section has been 
deleted because the Office of Hearings and Appeals will determine when 
it is appropriate to look to state law.
    Ascertaining Beneficial Interests and Classes: The Department has 
added several provisions that ensure that the Department can determine 
the type of estate and interest in which a beneficial interest may be 
held. For example, proposed section 179.3 ensures that the interest in 
a life estate vests only in specific, living persons, without 
conditions. Proposed section 179.4 ensures that the ``measuring'' life 
for a life estate is a specific person who is living at the time the 
conveyance document is approved or testator dies. Proposed section 
179.5 ensures that the interest in future interest holders vests only 
in specific, extant persons, and if there are conditions, that those 
conditions can be satisfied before the Secretary's approval of the 
conveyance document, if the future interests are created by conveyance 
document, or by the death of the testator, if the future interests are 
created by will. This section will, in practice, forbid successive 
future interest in persons who are non-specific, non-living persons. 
Likewise, proposed sections 179.6, 179.7 and 179.8 indicate that, where 
the conveyance or will grants an interest to a class, the class will 
close and any conditions must be satisfied upon approval of the 
conveyance document or death of the testator. Proposed section 179.8 
also describes the circumstances in which the Secretary may close or 
open a class. These changes allow the Secretary to know, at the time of 
approval of conveyance document or death of the testator, who holds the 
beneficial interests.
    Without Regard to Waste: During tribal consultations and during the 
period leading up to the publication of this proposed rule, several 
tribal commenters expressed concern with the preliminary draft's 
definition of ``without regard to waste'' and the phrase's effect on 
protection of the remainderman's interest from abusive practices of the 
life tenant. AIPRA states that all life estates created on or after 
June 20, 2006, shall be ``without regard to waste'' and defines this 
phrase as meaning that the life tenant shall be entitled to all income, 
including bonuses and royalties, to such land to the exclusion of the 
remaindermen. The Department has incorporated this concept into the 
regulations at proposed section 179.12, which provides that, where the 
order, conveyance document, or written agreement does not specify 
otherwise, life tenants will be entitled to all income, principal, 
contract bonuses, and royalties where the life estate was created by a 
conveyance document after the effective date of this regulation or by 
an order in a probate case where the testator died on or after June 20, 
2006.
    The Department has also added sections 179.9, 179.10 and 179.11, 
which respectively establish the privileges of a life tenant, the 
responsibilities a life tenant has to the remainderman, and action a 
remainderman may take to stop a life tenant from damaging and 
substantially diminishing property. Section 179.10 specifically states 
that, with respect to life estates created by probate order after June 
20, 2006, or by conveyance document after the passage of this 
regulation, the life tenant may not destroy the estate, commit 
malicious waste, or fail to reasonably manage the land in a manner 
consistent with long-term utilization and trust status of the land.
    Sale or Leasing of Interests: The Department has clarified in 
proposed section 179.9 that the life tenant may rent or sell the life 
estate interest to someone else. Additionally, section 179.10 notes 
that provisions regarding the relationship between a life tenant and 
remainderman do not restrict or amend the authority of the Secretary to 
consent on behalf of interest owners to the leasing or transfer of 
Indian land.
    Value of Current Life Estate and Remainder: Several tribal 
commenters identified an issue with placing the Single Life Factor 
chart directly into the text of the regulation, stating that it will be 
difficult to update. The Department has addressed this issue by 
deleting the Single Life Factor chart from the text of the regulation 
and instead referring to an existing chart that is frequently updated.
Distribution Table--25 CFR Part 179
    The following distribution table indicates where each of the 
current regulatory sections in 25 CFR part 179 is located in the 
proposed 25 CFR part 179.

[[Page 45186]]



----------------------------------------------------------------------------------------------------------------
                                           New
          Current  citation              citation               Title                         Remarks
----------------------------------------------------------------------------------------------------------------
179.1................................        179.1  What is the purpose of this    Clarifies that these
                                                     part?                          regulations do not apply to
                                                                                    any Federal statutory rights
                                                                                    to purchase.
179.2................................        179.2  What terms do I need to know?  Adds several definitions.
179.3................................  ...........  .............................  Deleted.
                                             179.3  Who can hold a life estate?    New section.
                                             179.4  Who can be the measuring life  New section.
                                                     for a life estate?
                                             179.5  Who can be designated as a     New section.
                                                     future interest holder?
                                             179.6  Who can be members of a        New section.
                                                     class?
                                             179.7  How are interest holders       New section.
                                                     determined if the conveyance
                                                     document or order contains
                                                     conditions?
                                             179.8  How are members to be          New section.
                                                     determined if there is an
                                                     open class?
                                             179.9  What are the privileges of a   New section.
                                                     life tenant?
                                            179.10  What is the life tenant's      New section.
                                                     responsibility to the
                                                     remainderman?
                                            179.11  How can a future interest      New section.
                                                     holder stop the life tenant
                                                     from damaging his/her
                                                     interest and substantially
                                                     diminishing its value?
179.4................................       179.12  How will the Secretary         Incorporates AIPRA provisions
                                                     distribute income and          for life estates created
                                                     principal between the life     after AIPRA's effective
                                                     tenant and the remainderman?   date, providing that these
                                                                                    life tenants are entitled to
                                                                                    all income, principal,
                                                                                    contract bonuses, and
                                                                                    royalties.
179.5................................       179.13  How will the value of a        Replaces existing life estate
                                                     current life estate and        value tables with a
                                                     remainder be determined?       reference to one table.
                                                                                    Deletes gender as factor
                                                                                    affecting life estate
                                                                                    values.
                                            179.14  How does a life estate         New section.
                                                     terminate?
                                            179.15  What if I do not want an       New section.
                                                     interest in a life estate?
                                            179.16  Why do I need to notify the    New section.
                                                     Secretary about the death of
                                                     a life tenant?
                                            179.17  How will term estates be       New section.
                                                     treated?
179.6................................  ...........  .............................  Deleted.
----------------------------------------------------------------------------------------------------------------

F. 43 CFR Part 4, Subpart D

    Currently, subpart D of 43 CFR part 4 addresses how OHA adjudicates 
the probate file that BIA prepares under 25 CFR part 15. The amendments 
remove the probate hearing procedures to a new part 30. See the 
discussion of these changes below.

G. 43 CFR Part 30

    The amendments make many administrative changes to the part to 
better meet plain language requirements and make the OHA probate 
process as transparent as possible. In addition, the amendments make 
several substantive changes. Amendments to this part clarify the two 
types of probate proceedings (summary and formal), simplify the 
deadline for filing a claim against an estate, and clarify the 
authority of administrative law judges, Indian probate judges, and 
attorney decision makers.
    Other amendments reduce the impact of fractionation on trust and 
restricted lands and expand land consolidation options by incorporating 
administrative procedures to implement AIPRA provisions related to 
consolidation agreements, renunciations in favor of a designated 
recipient, and purchase options at probate. Consolidation agreements 
permit heirs and devisees to exchange interests in trust or restricted 
lands for the purpose of consolidating ownership. Renunciations in 
favor of a designated recipient enable heirs or devisees that would 
have inherited a trust or restricted interest to renounce that interest 
in favor of another eligible party. The availability of the option to 
purchase a decedent's trust or restricted interests has been expanded 
to allow tribes, eligible family members, and co-owners of trust or 
restricted interests to exercise the option.
Changes From Preliminary Draft
    Because a significant number of issues on 43 CFR part 4 were 
identified in tribal comments, the following discussion addresses the 
issues by subheading in the new 43 CFR part 30.
    Overall: The Department reorganized some sections in this subpart 
to provide a better logical flow. For example, the Department moved 
former sections 4.382 and 4.383, related to the omission and improper 
inclusion of property in an estate, to sections 30.126 and 30.127 under 
the ``Judicial Authority and Duties'' subheading. Additionally, former 
section 4.216, related to what happens when a person dies without a 
will and has no heirs, has been moved to section 30.254 under the 
``Miscellaneous'' subheading. Section 4.217, related to settlement 
agreements, has been moved to section 30.150, under the new subheading 
``Consolidation and Settlement Agreements'' (formerly, this subheading 
included only consolidation agreements). Provisions related to tribal 
purchase of interests under special statutes (sections 4.290 through 
4.304 of the preliminary draft) have been moved to sections 30.260 
through 30.274. The Department also added a few sections under the 
``Renunciation of Interests'' and ``Summary Probate Proceedings'' 
subheadings for clarity.
    The Department and tribal commenters identified potential confusion 
regarding references to ``allocated market value,'' ``estimated market 
value,'' and ``appraised market value.'' The Department has addressed 
this issue by deleting references to ``allocated'' and ``estimated'' 
market value and replaced them with ``appraised'' market value.
    Several tribal commenters noted that while the preliminary drafts 
established timelines for filing an appeal, they did not impose any 
timelines on OHA to act. For example, several tribal commenters 
suggested placing a deadline on OHA for designating a case as 
appropriate for summary or formal hearing and assigning a case to a 
judge 10 days after receiving the file from BIA. Other tribal 
commenters suggested imposing a timeframe on notifying

[[Page 45187]]

potential heirs that a probate case has been assigned to a judge. 
Another tribal commenter recommended setting time periods for holding 
the hearing and issuing a final decision in a probate case. The 
Department has determined that, given the variation in complexity and 
resources available, establishing set timelines for judges would not be 
feasible.
    Definitions: In response to tribal comments, the Department 
modified the current definition of ``interested parties'' to ensure 
that tribes and co-owners with the option to purchase are included in 
the definition. Several tribal commenters were concerned that the 
definition in the preliminary draft was too narrow, and would not 
provide notice to persons with an interest. The revised definition 
includes tribes and persons with the option to purchase at probate and 
all co-owners. (See proposed section 30.102).
    Additionally, the Department revised several definitions included 
in the preliminary draft to ensure consistency with AIPRA and 25 CFR 
part 15. The Department amended the definition of ``child'' to include 
adopted children, in response to tribal comments that biological and 
adopted children should be treated equally in the distribution of 
property at probate. The Department also amended other terms for 
precision: for example, it changed ``trust financial assets'' and 
``cash assets'' to ``trust personalty'' to encompass both cash and 
securities; it changed ``beneficiaries'' to ``devisees,'' which is a 
more precise term including only those who receive under a will; it 
revised the definitions for ``per stirpes'' and ``de novo'' for 
clarity; and it deleted the placeholders for definitions for ``residing 
on'' and ``pretermitted spouse,'' having determined that meanings for 
these terms are subject to judicial determination based on fact-
specific circumstances.
    Commencement of Probate Proceedings: The Department clarified in 
section 30.114 that OHA will provide notice of the formal or summary 
probate proceeding and eliminated the requirement for BIA to notify 
potential heirs and devisees when it forwards the probate file to OHA 
for consideration because sufficient notice is provided by OHA upon 
designation of the case for a formal or summary probate proceeding.
    Judicial Authority: The Department amended section 4.220 of the 
preliminary draft, relating to the judge's general authority. It is now 
designated as section 30.120. In proposed subsection (f), the 
Department clarifies that the probate decision and order, not the terms 
of the sale, determine how the sale at probate and distribution of 
interests will occur. The Department also clarifies in proposed 
subsection (i) that the judge first determines whether the tribe has 
jurisdiction over the trust or restricted property at issue.
    The Department clarified the standard against which a judge may 
determine a person to be dead based upon an extended unexplained 
absence. The revisions require credible evidence to establish, by a 
clear and convincing standard, that the person has had no known contact 
with any person or entity during the six-year period preceding the 
hearing. (See proposed section 30.124).
    Claims: Tribal commenters pointed out that deadlines for filing 
claims were both unclear and potentially conflicting. The Department 
significantly amended the provisions related to deadlines for filing 
claims to simplify the deadline and make consistent with 25 CFR part 
15. The deadlines established in the preliminary draft complicated the 
matter of determining timeliness of claims and introduced both factual 
and legal issues, including choice of law issues, to determine when the 
creditor was chargeable with notice. Additionally, the preliminary 
draft continued the current requirement that the creditor file with BIA 
rather than OHA. This requirement is no longer appropriate since BIA no 
longer conducts any probate hearings. For this reason, the Department 
is allowing filing of claims with BIA while the probate file is being 
prepared, or with the OHA once the probate file has been transferred to 
the OHA. The Department has also clarified what must be included in a 
claim and eliminated the requirement for filing in triplicate. 
Additionally, the Department deleted the section related to priority 
and general claims (what had been sections 4.245 and 4.248 in the 
preliminary draft).
    Settlement and Consolidation Agreements: The Department placed 
provisions relating to settlement agreements with those relating to 
consolidation agreements. Revisions to the sections on consolidation 
agreements now specify that there are two types of consolidation 
agreements, one including only property in the estate, and another 
including both property in the estate and other property already owned 
by the heirs or devisees. The Department added a section allowing 
parties to a settlement or consolidation agreement the ability to waive 
valuation of trust property, given that the parties to the agreement 
may have non-economic reasons for entering into the agreement.
    Purchase at Probate: The Department clarified provisions relating 
to purchase at probate and clarified that, in accordance with AIPRA, an 
appraisal must be completed to determine market value. The Department 
also clarified provisions relating to renunciations to clarify who may 
receive a renounced interest in trust or restricted land, and who may 
receive a renounced interest in trust personalty. The Department also 
changed the previous provision that had stated the renunciation would 
not be valid if the designated recipient of a renounced interest 
refused to take the interest. Instead, this provision now states that 
the renounced interest will pass to the heirs of the decedent as if the 
person renouncing the interest had predeceased the decedent.
    Summary Probate Proceedings: The Department clarified what summary 
probate proceedings are and simplified the criteria for when a summary 
probate proceeding is appropriate (i.e., when the estate is ``cash 
only'' and the estate's value does not exceed $5,000 on the date of 
death). The Department deletes references to consolidation agreements 
and purchases at probate with regard to summary probate proceedings 
because such agreements would not apply to a cash-only estate.
    Formal Probate Proceedings: In response to tribal concerns 
regarding notice of a tribe's right to purchase, the Department amended 
section 4.337 of the preliminary draft to require notice to the tribe 
of probates of estates with trust or restricted land under the tribe's 
jurisdiction (see proposed section 30.213).
    The Department has deleted the question related to the judge's 
authority to require a person to appear at a hearing (section 4.334 of 
the preliminary draft) because, while the judge does have this 
authority, the judge's subpoena authority is broader than the question 
and answer indicates. The section related to notice of a requirement to 
appear at a hearing has also been deleted to avoid confusion.
    With regard to contests of self-proved wills, the Department has 
added a provision allowing the judge to order the deposition of a 
witness at a location reasonably near the witness's residence, where no 
attesting witness resides near the place of the hearing.
    The Department has also clarified that the official record of the 
probate case and decisions contain settlement agreements, consolidation 
agreements, renunciations and acceptances of renounced property, and 
additional items where interests are sold at probate.

[[Page 45188]]

    Miscellaneous: The section addressing the rights of inheritance of 
someone who kills the decedent has been revised to comply with AIPRA. 
The Department also clarifies that a judge may allow fees for attorneys 
representing interested parties, but not creditors and that a judge may 
order the payment of fees to a guardian ad litem.
Distribution Table--43 CFR Part 4, Subpart D
    The following distribution table indicates where each of the 
current regulatory sections in 43 CFR part 4, subpart D, is located in 
the proposed 43 CFR part 30 and in proposed revisions to 43 CFR part 4.

----------------------------------------------------------------------------------------------------------------
                                           New
          Current  citation              citation               Title                         Remarks
----------------------------------------------------------------------------------------------------------------
4.200................................       30.100  How do I use this subpart?     Adds updated references.
                                            30.101  Will the Secretary probate     New section.
                                                     all the land or assets in an
                                                     estate?
4.201................................       30.102  What terms do I need to know?  Adds definitions for ``BLM,''
                                                                                    ``consolidation agreement,''
                                                                                    ``directional disclaimer,''
                                                                                    ``probate staff,''
                                                                                    ``purchase option.''
                                                                                    Replaces ``deciding
                                                                                    official'' with ``judge.''
                                                                                    Deletes definition of
                                                                                    ``solicitor.''
4.210, 4.211.........................       30.110  When does OHA commence a       Plain language.
                                                     probate case?
                                            30.111  How does OHA commence a        Plain language.
                                                     probate case?
                                            30.112  What must a complete probate   Plain language.
                                                     file contain?
                                            30.113  What will OHA do if it         Adds that OHA may issue a
                                                     receives an incomplete         subpoena for the missing
                                                     probate file?                  information or proceed with
                                                                                    a hearing.
                                            30.114  What notice of the probate     Adds that OHA will provide
                                                     case will OHA send me?         notice upon receipt of the
                                                                                    probate file.
                                            30.115  Can I review the probate       New section.
                                                     file?
4.202................................       30.120  What authority does the judge  Deletes criteria for when a
                                                     have in a probate case?        formal hearing is necessary.
                                                                                    Adds new categories of
                                                                                    authority.
                                            30.121  May a judge appoint a master   New section. Allows judge to
                                                     in a probate case?             appoint masters.
                                            30.122  Is the judge required to       New section.
                                                     accept the master's
                                                     recommended decision?
4.206................................       30.123  Will the judge determine       Plain language.
                                                     matters of status and
                                                     nationality?
4.204, 4.203.........................       30.124  Can a judge find a person to   Establishes standard for
                                                     be dead by reason of           finding that any person is
                                                     unexplained absence?           dead.
4.205................................       30.154  What happens when a person     Incorporates AIPRA
                                                     dies without a will and has    references.
                                                     no heirs?
4.242................................       30.125  May a judge reopen a probate   Plain language. Identifies
                                                     case to correct errors and     circumstances in which judge
                                                     omissions?                     may reopen probate case.
                                            30.130  When must a judge or attorney  New section.
                                                     decision maker (ADM) recuse
                                                     himself or herself from a
                                                     probate case?
                                            30.131  Where may a judge or ADM seek  New section.
                                                     guidance on recusal?
                                            30.132  May an interested party to a   New section.
                                                     probate proceeding excuse a
                                                     judge from hearing a case?
                                            30.133  May an interested party to a   New section.
                                                     probate proceeding request
                                                     that a judge recuse?
                                            30.134  What must the judge consider   New section.
                                                     when deciding whether to
                                                     recuse?
                                            30.135  What action will the judge     New section.
                                                     take after deciding to
                                                     recuse himself or herself?
                                            30.136  How will the case proceed      New section.
                                                     once the judge has recused?
                                            30.137  Can I appeal the judge's       New section.
                                                     recusal decision?
                                            30.138  When can I appeal the judge's  New section.
                                                     recusal decision?
4.250(a).............................       30.140  When must I file a claim       Amends deadline for filing
                                                     against the probate estate?    claims.
4.250(c).............................       30.141  How must I file a creditor     Eliminates requirement for
                                                     claim against the probate      triplicate filing. Clarifies
                                                     estate?                        what must be included in the
                                                                                    affidavit and itemized
                                                                                    statement.
4.250(b).............................       30.142  Will a judge authorize         Plain language.
                                                     payment of a claim from the
                                                     trust estate where the
                                                     decedent's non-trust estate
                                                     may be available?
4.250(d)-(f).........................       30.143  Are there any categories of    Adds category for claims
                                                     claims that may not be         attributable to payments for
                                                     allowed?                       general assistance, welfare,
                                                                                    or similar assistance.
4.251(a).............................       30.144  May the judge authorize        Plain language.
                                                     payment of the costs of
                                                     administering the estate?
4.251(b).............................  ...........  What are priority claims the   Deleted.
                                                     deciding official may
                                                     authorize payment for?
4.251(c).............................  ...........  When may the deciding          Deleted.
                                                     official authorize payment
                                                     of general claims?
4.251(d).............................       30.145  When can a judge reduce or     Plain language.
                                                     disallow a claim?
4.251(e)-(g).........................       30.147  What happens if there is not   Plain language.
                                                     enough money in the IIM
                                                     account to pay all the
                                                     claims?

[[Page 45189]]

 
4.251(h).............................       30.148  Will interest or penalties     Plain language.
                                                     charged against claims after
                                                     the date of death be paid?
4.252................................       30.146  What property is subject to    Plain language.
                                                     claims?
4.207................................       30.150  If the interested parties      Plain language. Deletes
                                                     agree to settle matters        reference to liability for
                                                     among themselves, what does    irrigation construction and
                                                     the judge do?                  operation costs. Deletes
                                                                                    provisions regarding
                                                                                    preparation, deliverance,
                                                                                    and approval of deeds.
                                            30.151  May the devisees or eligible   New section. Adds AIPRA
                                                     heirs in a probate             provisions allowing for
                                                     proceeding consolidate their   consolidation agreements.
                                                     interests?
                                            30.152  May the parties to a           New section.
                                                     settlement agreement or
                                                     consolidation agreement
                                                     waive valuation of the trust
                                                     property?
                                            30.153  Is an order approving a        New section. Clarifies basis
                                                     consolidation agreement or     and procedures for approval
                                                     settlement agreement           of consolidation agreements.
                                                     considered a partition or
                                                     sale transaction?
                                            30.160  What can be purchased at       New section. Incorporates
                                                     probate?                       provisions for purchase at
                                                                                    probate.
                                            30.161  Who can purchase at probate?   New section. Incorporates
                                                                                    definition for eligible
                                                                                    purchaser.
                                            30.162  Does property purchased at     New section.
                                                     probate remain in trust or
                                                     restricted status?
                                            30.163  Is consent required for a      New section. Adds provisions
                                                     purchase at probate?           describing when consent of
                                                                                    an heir or devisee is
                                                                                    required for a purchase at
                                                                                    probate.
                                            30.164  What must I do to purchase at  New section. Adds provisions
                                                     probate?                       describing procedure for
                                                                                    requesting a purchase at
                                                                                    probate.
                                            30.165  Who will OHA notify of a       New section. Adds provisions
                                                     request to purchase at         for notification by OHA and
                                                     probate?                       required contents of the
                                                                                    notice.
                                            30.166  What will the notice of the    New section.
                                                     request to purchase at
                                                     probate include?
                                            30.167  How does OHA decide whether    New section.
                                                     to grant a request to
                                                     purchase at probate?
                                            30.168  What will the judge consider   New section. Clarifies that a
                                                     in determining the market      judge must base the market
                                                     value of an interest?          value on an appraisal that
                                                                                    meets certain standards.
                                            30.169  If I do not agree with the     New section. Establishes
                                                     appraised market value, what   process for challenging
                                                     can I do?                      appraisal.
                                            30.170  What happens when OHA grants   New section. Clarifies the
                                                     a request to purchase at       procedures for notifying the
                                                     probate?                       successful bidder and
                                                                                    finalizing the sale.
                                            30.171  When must the successful       New section.
                                                     bidder pay for the interest
                                                     purchased?
                                            30.172  What happens after the         New section.
                                                     successful bidder submits
                                                     payment?
                                            30.173  What happens to the money      New section. Clarifies that
                                                     from the sale?                 the Department will
                                                                                    distribute the money from
                                                                                    the sale to the appropriate
                                                                                    heirs, devisees, and/or
                                                                                    spouse.
                                            30.174  What happens if the            New section. Clarifies that
                                                     successful bidder does not     the sale will be cancelled
                                                     pay within 30 days?            if the successful bidder
                                                                                    fails to pay the bid within
                                                                                    30 days.
4.208................................       30.180  May I give up an inherited     Plain language.
                                                     interest in trust or
                                                     restricted property or trust
                                                     personalty?
                                            30.181  How do I renounce an           Plain language.
                                                     inherited interest?
                                            30.182  Who may receive a renounced    New section.
                                                     interest in trust or
                                                     restricted land?
                                            30.183  Who may receive a renounced    New section.
                                                     interest of less than 5
                                                     percent in trust or
                                                     restricted land?
                                            30.184  Who may receive a renounced    New section.
                                                     interest in trust
                                                     personalty?
                                            30.185  Can my designated recipient    New section.
                                                     refuse to accept the
                                                     interest?
                                            30.186  Are renunciations that         New section.
                                                     predate the American Indian
                                                     Probate Reform Act of 2004
                                                     valid?
4.208(c).............................       30.187  May I revoke my renunciation?  Plain language.
4.208(b).............................       30.188  Does a renounced interest      Plain language.
                                                     vest in the person who
                                                     renounced it?
4.212................................       30.200  What is a summary probate      Deletes provision stating
                                                     proceeding?                    that Federal law or tribal
                                                                                    code may prevent summary
                                                                                    processing.
                                            30.202  May I request a summary        Changes time period for
                                                     probate proceeding be          filing a request for formal
                                                     replaced by a formal           hearing from 60 days to 30
                                                     proceeding?                    days.
                                            30.201  What does a notice of a        New section.
                                                     summary probate proceeding
                                                     contain?
4.213................................  ...........  .............................  Deleted.

[[Page 45190]]

 
4.214................................       30.203  What must a summary probate    Adds provisions regarding
                                                     decision contain?              renunciation. Deletes
                                                                                    provisions regarding dower,
                                                                                    curtesy, and homestead, and
                                                                                    requirement to attach
                                                                                    certified inventory of trust
                                                                                    or restricted lands. Changes
                                                                                    time in which decision will
                                                                                    become final from 60 days to
                                                                                    30 days.
4.215(a)-(c).........................       30.204  How do I seek review of a      Changes time period for
                                                     summary probate proceeding?    filing request for de novo
                                                                                    review from 60-day period to
                                                                                    30-day period.
4.215(d).............................  ...........  .............................  Deleted. Provision had
                                                                                    allowed persons to request
                                                                                    de novo review after
                                                                                    expiration of time period
                                                                                    for filing request under
                                                                                    certain circumstances.
4.215(e).............................       30.205  What happens after I file a    Plain language.
                                                     request for a de novo
                                                     review?
                                            30.206  What happens if nobody files   New section. Establishes what
                                                     for a de novo review?          happens at expiration of 30-
                                                                                    day period for filing de
                                                                                    novo review.
4.216................................       30.210  How will I receive notice of   Adds locations for posting.
                                                     the formal probate             Deletes provision
                                                     proceeding?                    establishing that interested
                                                                                    parties living near posting
                                                                                    will be bound by decision.
                                            30.213  What notice to a tribe is      Expands notice to tribes
                                                     required in a formal probate   where there is a statutory
                                                     proceeding?                    option to purchase to
                                                                                    provide notice to tribe of
                                                                                    every formal probate
                                                                                    proceeding involving trust
                                                                                    or restricted land over
                                                                                    which the tribe has
                                                                                    jurisdiction.
                                            30.211  Will the notice be published   New section.
                                                     in a newspaper?
                                            30.212  Can I waive notice of the      New section.
                                                     hearing, the time limits, or
                                                     form of notice?
4.217................................       30.214  What must a notice of hearing  Plain language. Adds
                                                     contain?                       provisions regarding
                                                                                    consolidation and
                                                                                    renunciation.
4.220(a), (c)........................       30.215  How can I obtain               Plain language. Adds
                                                     documentation related to the   provisions.
                                                     probate proceeding?
4.221(a)-(c).........................       30.216  How does an interested party   Plain language.
                                                     obtain permission to take
                                                     depositions?
4.221(d)-(g).........................       30.217  How is a deposition taken?     Plain language.
4.221(h).............................       30.218  How may the transcript of a    Plain language.
                                                     deposition be used?
                                            30.219  Who pays for the costs of      New section.
                                                     taking a deposition?
4.222................................       30.220  How does an interested party   Plain language. Deletes
                                                     obtain written                 provision regarding cross-
                                                     interrogatories and            interrogatories.
                                                     admission of facts and
                                                     documents?
4.223................................       30.221  May the judge limit the time,  Plain language.
                                                     place, and scope of
                                                     discovery?
4.224................................       30.222  What happens if a party fails  Provides that the judge may
                                                     to comply with discovery?      draw inferences adverse to
                                                                                    the claims of the party who
                                                                                    failed to comply with the
                                                                                    discovery request.
4.225................................       30.223  What is a prehearing           Plain language.
                                                     conference?
4.230................................       30.224  Can a judge compel a witness   Establishes procedure for
                                                     to appear and testify at a     requesting a subpoena.
                                                     hearing?
4.231................................       30.225  Are probate hearings open to   Clarifies that probate
                                                     the public?                    hearings are open to public.
                                                                                    Establishes that the judge
                                                                                    may seal the record or
                                                                                    transcript of sequestered
                                                                                    hearings.
                                            30.226  Must testimony in a probate    Plain language.
                                                     proceeding be under oath or
                                                     affirmation?
                                            30.227  Is a record made of formal     Plain language.
                                                     probate hearings?
4.232................................       30.228  What evidence is admissible    Clarifies evidentiary
                                                     at a probate hearing?          admissibility matters.
4.233(a)-(b).........................       30.229  Is testimony required for      Moves affidavit language to
                                                     self-proved wills or           25 CFR part 15. Adds that
                                                     codicils?                      judge may order deposition
                                                                                    of available attesting
                                                                                    witnesses at location
                                                                                    reasonably near residence of
                                                                                    witness.
4.233(c).............................       30.230  What if approval of the self-  Plain language.
                                                     proved will, codicil or
                                                     revocation is contested?
4.234................................       30.231  Who pays witnesses' costs?     Plain language.
4.235................................       30.232  May a judge schedule a         Plain language.
                                                     supplemental hearing?
4.236(a).............................       30.233  What will the official record  Plain language.
                                                     of the probate case contain?
4.236(b).............................       30.234  What will the judge do with    Plain language.
                                                     the original record?
                                            30.235  What happens if a hearing      Plain language.
                                                     transcript has not been
                                                     prepared?
4.240(a).............................       30.236  What will the judge's          Specifies what decision will
                                                     decision in a formal probate   contain in intestate case
                                                     hearing contain?               and in testate case. Adds
                                                                                    provisions for
                                                                                    renunciations, consolidation
                                                                                    and settlement agreements,
                                                                                    and purchases at probate.
4.240(b).............................       30.237  What notice of the decision    Changes time period from 60
                                                     will the judge provide?        to 30 days.
4.241(a).............................       30.238  May I file a petition for      Changes time period for
                                                     rehearing if I disagree with   filing petition from 60 to
                                                     the judge's decision in the    30 days. Requires judge to
                                                     formal probate hearing?        forward copy of petition to
                                                                                    affected agencies.

[[Page 45191]]

 
4.241(b).............................       30.239  Does any distribution of the   Plain language.
                                                     estate occur while a
                                                     petition for rehearing is
                                                     pending?
4.241(c)-(e).........................       30.240  How will the judge address a   Plain language.
                                                     petition for rehearing?
4.241(f).............................       30.241  Can I submit another petition  Clarifies that judge's
                                                     for rehearing?                 jurisdiction over case ends
                                                                                    upon final disposition of
                                                                                    petition for rehearing,
                                                                                    except for reopening.
4.241(g)-(h).........................  ...........  .............................  Deleted.
                                            30.242  When does the judge's          New section. Establishes that
                                                     decision on a petition for     decision does not become
                                                     rehearing become final?        final for 30 days.
4.242................................       30.243  Can a closed probate case be   Changes time for filing
                                                     reopened?                      petition and measures from
                                                                                    date error was discovered.
                                                                                    Clarifies standard for
                                                                                    reopening.
                                            30.244  How will the judge address my  Plain language.
                                                     petition for reopening?
                                            30.245  What happens if the judge      Eliminates 75-day period for
                                                     reopens the case?              not distributing.
4.242(h)-(i).........................  ...........  .............................  Deleted.
                                            30.246  When will the decision on      New section.
                                                     reopening become final?
4.261................................       30.250  When does the anti-lapse       Plain language.
                                                     provision apply?
4.262................................       30.251  What happens if an heir or     Changed from ``feloniously
                                                     devisee knowingly              taking a testator's life''
                                                     participates in the willful    to comply with AIPRA
                                                     and unlawful killing of the    language. Expands to apply
                                                     decedent?                      to intestate succession.
                                                                                    Establishes that person will
                                                                                    be treated as if
                                                                                    predeceased.
4.270................................  ...........  .............................  Deleted.
4.271................................       30.126  What happens if property was   Plain language.
                                                     omitted from the inventory
                                                     of the estate?
4.272................................       30.127  What happens if property was   Plain language.
                                                     improperly included in the
                                                     inventory of the estate?
4.273................................  ...........  .............................  Deleted.
4.281................................       30.252  Can a judge allow fees for     Plain language. Allows fees
                                                     attorneys representing         for all interested parties,
                                                     interested parties?            except creditors.
4.282................................       30.253  How must minors or other       Plain language.
                                                     legal incompetents be
                                                     represented?
4.300(a).............................       30.260  What land is subject to a      Plain language.
                                                     tribal purchase option at
                                                     probate?
4.300(b)-(d).........................       30.261  What determinations with       Plain language.
                                                     regard to a tribal purchase
                                                     option will a judge make?
4.301................................       30.262  When will BIA furnish a        Plain language.
                                                     valuation of a decedent's
                                                     interests?
4.302(a).............................       30.263  When is a final decision       Plain language.
                                                     issued?
4.302(b).............................       30.264  When may a tribe exercise its  Plain language.
                                                     statutory option to
                                                     purchase?
                                            30.265  How does a tribe exercise its  Plain language.
                                                     statutory option to
                                                     purchase?
4.303................................       30.266  May a surviving spouse         Plain language.
                                                     reserve a life estate when a
                                                     tribe exercises its
                                                     statutory option to
                                                     purchase?
4.304................................       30.267  What if I disagree with the    Plain language.
                                                     probate decision regarding
                                                     tribal purchase option?
4.305(a).............................       30.268  May I demand a hearing         Plain language.
                                                     regarding the tribal option
                                                     to purchase decision?
4.305(b).............................       30.269  What notice of the hearing     Plain language.
                                                     will the judge provide?
4.305(c)-(d).........................       30.270  How will the hearing be        Plain language.
                                                     conducted?
4.306................................       30.271  How must the tribe pay for     Plain language.
                                                     the interests it purchases?
4.307(a).............................       30.272  What are the Superintendent's  Plain language.
                                                     duties upon payment by the
                                                     tribe?
4.307(b).............................       30.273  What action will the judge     Plain language.
                                                     take to record title?
4.308................................       30.274  What happens to income from    Plain language.
                                                     land interests during
                                                     pendency of the probate?
4.320(a).............................        4.320  Who may appeal a judge's       Plain language.
                                                     order on petition for
                                                     rehearing or reopening?
4.320 (b)(1)-(3).....................        4.321  How to appeal a judge's order  Plain language.
                                                     on petition for rehearing or
                                                     reopening or regarding
                                                     purchase of interests in a
                                                     deceased Indian's trust
                                                     estate.
                                             4.322  What an appeal must contain.   Plain language.
4.320(c).............................        4.323  Service of the notice of       Plain language.
                                                     appeal.
4.320(d).............................        4.324  Record on appeal.              Plain language.
4.321................................        4.325  Docketing the appeal.          Plain language.
4.322................................        4.326  Disposition of the record.     Plain language.
----------------------------------------------------------------------------------------------------------------


[[Page 45192]]

V. Public Comments

    During the period prior to this publication, from December 27, 2005 
to March 31, 2006, the Department received correspondence (e-mails, 
letters, and faxes) from tribes and individual Indians. Of these, the 
majority addressed at least one of the regulations being proposed 
today. The remaining addressed only those regulations that were part of 
the December 27, 2005 package sent to the tribes, but are not part of 
this proposed rule. The Department has stored these comments so that it 
can review them when it addresses those remaining regulations.
    These comments raised several issues that the Department considered 
in preparing the drafts for publication as a proposed rule. A summary 
of those issues that were considered in developing the proposed 
regulatory language is provided under a subheading ``changes to 
preliminary drafts'' under the discussion of each part in the Part-by-
Part Analysis. There will also be a 60-day public comment period 
following this publication. Subsection B provides directions for 
submitting written comments and information on upcoming tribal 
consultations addressing this rulemaking.

A. Comments Received Prior to This Publication

    The Department provided tribal leaders with preliminary drafts of 
this proposed rule in December 2005 and requested comment by the end of 
March 2006. Additionally, the Department held two pre-publication 
tribal consultation sessions in February 2006 and March 2006 to obtain 
input on the preliminary drafts.
    As previously mentioned, the Department received an overwhelming 
number of comments during the Albuquerque tribal consultation regarding 
the volume of regulatory text and number of preliminary draft 
regulations. In response to these comments, the Department has decided 
to first focus on those regulations required for, or closely related 
to, implementation of AIPRA. These regulations are being published 
today. These regulations are a priority for the Department because they 
are necessary to implement AIPRA, which became fully effective on June 
20, 2006. The remaining regulations that were distributed as 
preliminary drafts will be re-examined and consulted on at a future 
date.
    Issues raised during tribal consultations and in the time leading 
up to publication of this proposed rule that are specific to one or 
more regulations or regulatory sections are addressed in the Part-by-
Part Analysis, below.

B. Directions for Submitting Comments

    The regulatory amendments proposed in this rulemaking include 
substantive changes streamlining and standardizing Department 
procedures to better serve beneficiaries and incorporating statutory 
law. The amendments also include revisions that are simply 
administrative in nature, including changes to better meet plain 
language requirements, defining acronyms, and updating personnel and 
agency titles. Both tribal and non-tribal members of the public are 
invited to make substantive comment on any of these changes, whether 
they be with respect to substantive or administrative changes.
    Two copies of written comments should be submitted to the address 
indicated in the ADDRESSES section of this notice. Comments may also be 
telefaxed to (202) 208-5320 or submitted by electronic mail (``email'') 
to <a href="/cdn-cgi/l/email-protection#5f12363c373a333a0019000c3631383a2d1f36302c713b303671383029"><span class="__cf_email__" data-cfemail="a1ecc8c2c9c4cdc4fee7fef2c8cfc6c4d3e1c8ced28fc5cec88fc6ced7">[email protected]</span></a>. For comments submitted 
electronically, please include the number 1076-AE59 in the subject line 
of the message. All comments received will be available for public 
inspection at the Department of the Interior, 1849 C Street, NW., 
Washington, DC 20240. All written comments received by the date 
indicated in the DATES section of this notice and all other relevant 
information in the record will be carefully assessed and fully 
considered prior to publication of the final rule. Any information 
considered to be confidential by the commenter must be so identified 
and submitted in writing. The Department of the Interior reserves the 
right to determine the confidential status of the information and to 
treat it according to our determination (see 10 CFR 1004.11).
    The Department has scheduled an additional consultation meeting in 
Rapid City, South Dakota on July 27, 2006, from 8 a.m. to 5 p.m., at 
the Best Western Ramkota Hotel and Conference Center. The Department 
also plans to host two additional consultation meetings in Billings, 
Montana on August 8, 2006, from 8 a.m. to 5 p.m., at the Sheraton 
Billings Hotel and in Minneapolis, Minnesota on August 10, 2006, from 8 
a.m. to 5 p.m., at the Ramada Mall of America. All tribal and non-
tribal persons interested in this rulemaking are encouraged to 
participate in these consultations.

VI. Procedural Requirements

A. Regulatory Planning and Review (Executive Order 12866)

    Executive Order 12866 (58 FR 51735, October 4, 1993) requires 
Federal agencies taking regulatory actions to determine whether that 
action is ``significant.'' Agencies must submit regulatory actions that 
qualify as ``significant'' to the U.S. Office of Management and Budget 
(OMB) for review, assess the costs and benefits of the regulatory 
action, and fulfill other requirements of the Executive Order. A 
``significant regulatory action'' is one that is likely to result in a 
rule that may meet one of the following four criteria:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect, in a material way, the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of the 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    OMB has determined that the rule is not a significant rule under 
Executive Order 12866 because it is not likely to result in a rule that 
will meet any of the four criteria.
    (1) The rule will not have an annual effect on the economy of $100 
million or more or adversely affect, in a material way, the economy, a 
sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or tribal 
governments or communities. 
    This rule will not have an annual effect on the economy of $100 
million or more, as described below. The following discussion 
individually addresses each Code of Federal Regulations (CFR) part and 
significant changes within each part, where appropriate. Within the 
discussion of each CFR part is a brief statement of the major changes, 
the baseline (i.e., the current state of affairs), an analysis of the 
economic effect of the change in comparison to the baseline 
alternative, and a brief conclusion.
25 CFR Part 15
    This part governs the processing of probate estates by BIA. 
Amendments will ensure that the BIA compiles

[[Page 45193]]

sufficient information into the probate file so that when BIA passes 
the probate file on to OHA, OHA can properly administer the probate 
estate. The baseline for this analysis is the existing part 15, which 
does not incorporate requirements for certain items of information to 
be included in the probate file.
    The Secretary has sole statutory authority to probate Indian 
estates. 25 U.S.C. 372; First Moon v. White Tail & United States, 270 
U.S. 243, 46 S. Ct. 246, 70 L. Ed. 565; United States v. Bowling, 256 
U.S. 484, 41 S. Ct. 561, 65 L. Ed. 1054; Lane v. United States, 241 
U.S. 201, 36 S. Ct. 599, 60 L. Ed. 956; Hallowell v. Commons, 239 U.S. 
506, 36 S. Ct. 202, 60 L. Ed. 409. Bertrand v. Doyle, 36 F.2d 351 (10th 
Cir. 1929). As such, it is imperative that the Secretary have all the 
information necessary to properly determine the heirs and distribute 
estate assets. The alternative to these amendments (i.e., the baseline) 
would deprive OHA of the information it needs to accurately identify 
what property is part of the estate, who the heirs and devisees are, 
and how the property should be distributed among the heirs and 
devisees. The recently enacted AIPRA amendments to ILCA, 25 U.S.C. 2201 
et seq., affects the determination of how property should be 
distributed among the heirs and beneficiaries by allowing certain 
persons to purchase interests in property at probate and consolidation 
agreements, and affecting who can inherit a small fractional interest. 
AIPRA therefore directly affects the determinations that OHA will make 
and requires additional information to be included in the probate file.
    The primary benefit of the amendments is that they ensure that OHA 
will have the information it needs in the probate file to adjudicate 
Indian estates. Because this part addresses only internal processes, 
and does not impose any enforceable obligation on persons outside the 
BIA, there is no effect to the outside economy. Amendments to this part 
focus on the BIA's procedures in compiling a complete probate file, and 
addressing what should be included in that file. No economic impact is 
associated with these internal processes.
25 CFR Part 150
    The revised Part 150 provides clarification of the LTRO's 
procedures and increases the ability of the LTRO to provide services 
and products to Indians, tribes, and the public. Specifically, the 
amendments describe the LTRO process for receiving and recording title 
instruments, clarify what services and products LTRO provides, and 
clarify what documents qualify as title instruments. Currently, the 
regulations do not clearly define the procedures, products, and 
services of the LTRO. Finally, the amendments provide a schedule of 
fees for non-probate LTRO products and services that will be charged.
    Those parts of the regulation that describe the processes, 
services, and products of the LTRO will have no effect on the economy. 
The amendments that establish fees for LTRO services and products are 
comparable to those fees charged by local governments for the 
comparable services and products. These amendments merely redistribute 
the costs by requiring fees normally paid for by the public at large to 
be borne by the individuals, other than the excepted categories of 
individuals, directly benefiting from the service or product. Therefore 
the effect, if any, on the economy resulting from these amendments is 
minimal.
    For these reasons, the amendments to part 150 will not have an 
effect on the economy.
25 CFR Part 152
    Amendments to this part reorganize subparts and sections within 
subparts for clarity. Procedures for each of the following conveyances 
are now clarified:
    <bullet> Allowing for conveyances at less than fair market value 
under certain circumstances (see Sec.  152.109);
    <bullet> Tribal option to purchase where land is proposed to be 
conveyed in unrestricted fee (see Sec.  152.206);
    <bullet> Conveyances of fractional interests without tribal consent 
under certain circumstances. Also, tribal options to purchase interests 
being sold, gifted or exchanged by individual Indians where the tribe 
has enacted a law that imposes such a requirement (see Sec.  152.209);
    <bullet> Tribal tract purchases of fractional interests of non-
consenting owners (see Subpart D at Sec.  152.302); and
    <bullet> Eligibility for conveying trust and restricted land (see 
Sec.  152.203). Additionally, the amendments implement ILCA policy 
goals and AIPRA provisions allowing for:
    <bullet> Conveyances in accordance with tribal land consolidation 
plans (see subpart B at Sec.  152.101);
    <bullet> Consolidation of highly fractionated tracts by purchase of 
interests at fair market value (see subpart E at Sec.  152.401); and
    <bullet> Partition of fractionated lands to unitize interests (see 
subpart F at Sec.  152.501).
The amendments also detail eligibility for conveying trust and 
restricted land, conveying trust and restricted land at less than fair 
market value, the attachment and removal of Indian Land Consolidation 
Program liens, and the procedures for mortgages and deeds of trust.
    The baseline for this analysis is the current part 152, which does 
not incorporate AIPRA's provisions advancing consolidation goals. The 
current part 152 allows for partition of inherited allotments but does 
not extend partition to other tracts of trust or restricted land or 
tracts in which fractional interests are held in unrestricted fee 
status.
a. Tribal Land Consolidation Plans
    Amendments to part 152 add provisions regarding tribal land 
consolidation plans by providing that the Secretary will approve only: 
(1) Those exchanges and negotiated sales of tribal land that are made 
pursuant to an approved land consolidation plan and in which the tribe 
receives at least 90% of the fair market value or greater; and (2) 
those exchanges made in the absence of a land consolidation plan in 
which the tribe receives the fair market value or greater. Part 152 
restricts the tribe's use of consideration received from negotiated 
sales and exchanges in accordance with a tribal land consolidation plan 
to the purchase of other lands as described in the tribal consolidation 
plan.
    These changes from the existing regulation will assist tribes in 
reducing fractionation and strengthening their land base. A tribal 
consolidation plan must include the following elements: a description 
of the land; maps depicting the land to be conveyed and interests to be 
purchased; an explanation of how the plan will reduce fractionation; 
and an appropriate tribal authorization. The cost to the tribe of 
putting together a tribal consolidation plan is estimated to be $2,500. 
The Secretary is encouraging all Federally recognized tribes to prepare 
a tribal land consolidation plan. Thus, the total cost resulting from 
the plan requirement for each of the 562 tribes will be $1.4 million. 
However, tribes will likely prepare and submit the plans over a period 
of at least ten years, resulting in an annual cost to tribes of 
$140,000. This cost is slightly overestimated because some tribes 
already have a land consolidation plan.
b. Tribal Option To Purchase Where Land Is Conveyed in Unrestricted Fee
    The amendments grant tribes the opportunity to purchase trust or 
restricted lands being proposed for transfer out of trust or to 
unrestricted status. The benefit of this provision is that it 
strengthens tribal land holdings.

[[Page 45194]]

There are no apparent costs related to this option, as the grantor will 
receive consideration for the interest being conveyed. Additionally, an 
exception is provided for those instances where the interest is part of 
a family farm.
c. Consent for Conveyances
    The amendments provide that an owner may convey his or her 
fractional interest without the consent of co-owners and that owners of 
100% of the interests in a tract do not need the consent of the tribe. 
These provisions grant individuals the right to control conveyances of 
their interests. The benefit of these provisions includes strengthening 
individual Indians' abilities to convey and consolidate fractional 
interests. The co-owners share in this benefit. Additionally, 
marketability of the land interests is increased with removal of the 
consent requirement. There is no cost to these provisions because the 
land remains in trust status.
    These amendments also require tribal consent for conveyance of a 
fractional interest where the tribe has an approved tribal probate code 
restricting the inheritance rights of the grantee. This provision 
strengthens tribal control over land within its jurisdiction. No 
apparent costs are associated with this provision.
d. Tribal Tract Purchases
    The tribal tract purchase amendments implement provisions of AIPRA 
authorizing the Secretary to convey the fractional interests of any 
non-consenting trust and restricted owners to a tribe, where the tribe 
owns at least 50% of the trust or restricted interests in the tract or 
has obtained the consent of the owners of at least 50% of such 
interests.
    These provisions increase tribes' ability to obtain and consolidate 
fractional interests. Ultimately, this will grant the tribes more 
economic power through land holdings. Additionally, individual 
interests held in trust and restricted status are subject to 
restrictions on transfer. The cost of restricting free transfer without 
the approval of the Secretary or tribe affects the value of the 
interest. The value of land is not affected by the percentage of 
consent required, except to the degree that the time in which transfer 
occurs may be lessened by reducing the percentage required, thus 
increasing marketability.
e. Consolidation by Sale of Highly Fractionated Tracts
    Consolidation by sale applies to trust and restricted lands, on or 
off reservation, that are highly fractionated parcels. In order to 
consolidate by sale, an eligible applicant must obtain certain consents 
including consent of the owners of at least 50% of the undivided 
interests in the parcel. Consolidation of highly fractionated parcels 
by sale will increase individual Indians' and tribal land holdings, 
providing them with greater economic power and use of land. As stated 
above, individual interests held in trust and restricted status are 
subject to restrictions on transfer. The cost of restricting free 
transfer without the approval of the Secretary or tribe affects the 
value of the interest. The value of land is not affected by the 
percentage of consent required, except to the degree that the time in 
which transfer occurs may be lessened by reducing the percentage 
required, thus increasing marketability.
    Allowing consolidation by sale is expected to reduce the proportion 
of highly fractionated interests. The cumulative transfers of property 
achieved via consolidation by sale is not expected to impact the 
economy. However, economic benefits are expected to accrue by allowing 
owners greater economic power and control of the use of their land.
f. Partition in Kind
    This subpart authorizes the Secretary to subdivide trust and 
restricted land with multiple owners into smaller tracts in which the 
interests of the owners are unified or consolidated, where the owners 
have been unable to accomplish such a partition in kind by exchange of 
deeds. Any owner of a fractional interest may apply to the Secretary 
for a partition. This new subpart will provide owners with greater 
control over their land; there is no apparent effect on the economy.
g. Eligibility for Conveying and Receiving Individually Owned Interests 
in Trust or Restricted Status
    The amendments clarify that individual Indians (or their guardians, 
etc.) may convey lands and that only tribes, individual Indians, and 
other co-owners in trust or restricted status may acquire individually 
owned trust or restricted land. This clarification is made to ensure 
that individual Indians without a tribal land base are permitted to 
convey and receive interests in trust or restricted status. This 
provision will have no economic effect.
h. Conveyance of Individually Owned Interests at Less than Fair Market 
Value
    The amendments remove restrictions on conveying individually owned 
interests at less than fair market value, as long as the grantor is 
provided with information regarding the fair market value. This will 
increase the ability of individuals to sell their land as they choose. 
Additionally, these amendments make land interests more marketable by 
reducing the restrictions on transfer. The cost of obtaining 
information on fair market value was already required, so the 
amendments add no new costs.
i. Attachment and Removal of Indian Land Consolidation Program Liens
    These amendments implement AIPRA provisions regarding the Indian 
Land Consolidation program liens, in which a lien in the amount of the 
purchase price attaches to income derived from any interest purchased 
through the Indian Land Consolidation Program. This provision has no 
apparent costs as the lien is removed upon satisfaction.
j. Mortgages and Deeds of Trust
    These amendments detail existing procedures by which the Secretary 
approves mortgages or deeds of trust encumbering individually owned 
land, where all of the trust or restricted interests in a tract are 
being encumbered and made subject to foreclosure or sale in the event 
of a default on the loan being secured by the approved document. There 
is no quantifiable effect on the economy because the title remains in 
trust even if foreclosure occurs.
    Cumulatively, part 152 will not have a significant or quantifiable 
effect on the economy.
25 CFR Part 179
    Amendments to part 179 make two primary changes with potential to 
affect the economy:
    <bullet> Incorporates AIPRA's requirement that life estates after 
June 20, 2006, will be ``without regard to waste,'' meaning that the 
life tenant is now entitled to receipt of all income--including rents 
and profits, such as contract bonuses and royalties, and the interest 
on invested principal--from the land. However, the testator can still 
specify in the conveyance document distributions to the life tenant and 
remaindermen different from those established by AIPRA.
    <bullet> Changes the discount rate to make it consistent with the 
Internal Revenue Service's valuations of life estate, which will 
generally provide the remaindermen with more value than under the 
current 6% discount rate.
    The existing part 179 provides that the life tenant will have the 
rights to all rents and profit, as income, from the estate, but did not 
provide that such rights were ``without regard to waste.''

[[Page 45195]]

Therefore, the existing part 179 required the life tenant to ensure 
that it did not diminish the estates of the remainderman in its pursuit 
of rents and profits. Additionally, the existing part 179 required 
contract bonuses to be split one-half each to the life tenant and 
remainderman, whereas now the life tenant is entitled to the full 
amount of the contract bonus.
    The first primary change to part 179 is necessary to reflect the 
AIPRA section establishing that life estates will be determined 
``without regard to waste,'' meaning that the life estate holder is 
entitled to the receipt of all income, including bonuses and royalties, 
from such land, to the exclusion of remaindermen. See 25 U.S.C. 
2201(10), 2205(a)(3), 2206(a)(2). These amendments comply with the 
provisions of AIPRA with respect to life estates after June 20, 2006. 
The testator can still specify in the conveyance document distributions 
to the life tenant and remaindermen different from those established by 
AIPRA. There is no change with respect to life estates created before 
June 20, 2006.
    Amendments to the discount rate make the rate consistent with the 
Internal Revenue Service's valuations of life estate, which will 
generally provide the remaindermen with more value than under the 
current 6% discount rate.
    The cost of amendments incorporating ``without regard to waste'' 
provisions could be a deferred value of the remaindermen's estate. 
However, amendments to the discount rate will generally provide 
remaindermen with more value. These amendments may affect the timing of 
the distribution of the value of the land between life tenants and 
remaindermen, but will not affect the economy as a whole.
    For these reasons, part 179 will not have a measurable effect on 
the economy.
43 CFR Parts 4 and 30
    Most amendments to 43 CFR part 4 (including those incorporated in 
the new part 30) are amendments to the existing 43 CFR 4 subpart D, 
relating to the administration of probate estates. The amendments add 
provisions to establish procedures for renouncing an interest, 
consolidating interests by agreement, requesting and conducting a 
purchase at probate, determining fair market value, requesting 
disqualification of a judge, and standardizing the time periods for 
filing requests for de novo review and rehearing to 30, rather than 60, 
days.
    The existing 43 CFR part 4 does not contain any of the methods for 
acquiring interests at probate that have recently been established by 
AIPRA. Additionally, the current time period for filing requests for de 
novo review and rehearing is 60 days.
    Neither the existing part 4 nor the amendments to part 4 affect the 
economy. Because these provisions relate to the adjudication of probate 
estates and will not affect the amount of money and property within 
each estate that is distributed, nor the number of estates that must be 
probated, they have no effect on the economy. For these reasons, 
amendments to 43 CFR part 4, subpart D, and the new 43 CFR part 30 will 
not affect the economy.
New 25 CFR Part 18 (Tribal Probate Codes)
    The new CFR part addressing tribal probate codes implements 
provisions of ILCA that allow any tribe to adopt a tribal probate code 
to govern descent and distribution of trust and restricted lands within 
its reservation or otherwise subject to its jurisdiction. 25 U.S.C. 
2005(a). ILCA provides that the tribe must submit the tribal probate 
code to the Secretary for review and that the Secretary may not approve 
tribal probate codes that contain certain provisions.
    The baseline is the absence of regulations governing tribal probate 
codes. While the ILCA statute had established requirements for a tribal 
probate code and the basics of the submission and approval process 
since 1983, there have been no implementing regulations. With AIPRA, a 
new uniform probate code will govern descent and distribution of trust 
and restricted property. This may prompt some tribes prepare one and 
may prompt tribes that already have a tribal probate code to amend it 
in light of AIPRA.
    AIPRA will govern the descent and distribution of trust and 
restricted property owned by a deceased Indian in the absence of a 
will. In the alternative, approved tribal probate codes will also 
govern the distribution of trust property, but will not directly affect 
the economy. These regulations, which implement statutory provisions 
for Secretarial approval of tribal probate codes, do not affect the 
economy because tribes were already authorized to establish tribal 
probate codes and statutorily required to submit such codes to the 
Secretary for approval.
    For these reasons, the proposed new CFR part, 25 CFR part 18, will 
not affect the economy.
    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency.
    Implementation of this rule will not create any serious 
inconsistencies or otherwise interfere with an action taken or planned 
by another agency because the Department is the only agency with 
authority for handling Indian trust management issues. Additionally, 
this rule will standardize processes within the Department, to guard 
against internal inconsistencies.
    (3) This rule will not materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of the recipients thereof.
    (a) The revisions 25 CFR part 15 address what must be included in a 
probate package and describe how to file a claim against an estate, but 
do not address entitlements, grants, user fees, or loan programs. 
Therefore, revisions to part 15 have no budgetary effects and do not 
affect the rights or obligations of any recipients.
    (b) The revisions to 43 CFR part 4 (including those incorporated 
into the new 43 CFR part 30) address the procedures for adjudicating a 
probate case and the rights of individual Indians with respect to a 
given probate case. The revisions do not address entitlements, grants, 
user fees, or loan programs.
    (c) In 25 CFR part 150, the rule establishes user fees for services 
and products provided by LTRO. The Secretary had the right to charge 
fees under the prior regulation, but the revised part 150 describes the 
Secretary's intent to begin charging fees to persons who are not 
excepted. Under 25 U.S.C. 14b, the Secretary may order that such funds 
be directed to the appropriation account for LTRO. Because the 
categories of persons who are exempt from the fees is so large, the 
budgetary impact of the revised part 150 will be minimal.
    (d) In 25 CFR part 152, the rule implements AIPRA provisions to 
allow for consolidation of highly fractionated lands, purchase of 
interests at fair market value, and consolidation agreements. These 
provisions broaden tribes' rights to acquire interests through tribal 
tract purchases. Where interests are acquired at the fair market value, 
the Secretary may contribute money from the Acquisition Fund. ILCA 
established the Acquisition Fund, authorizing the Secretary to disburse 
appropriations to acquire fractional interests at fair market value and 
to collect all revenues from the lease, permit, or sale of resources 
from acquired interests or paid by Indian landowners. By broadening 
tribes' rights to acquire interests into trust, revisions to part 152 
may increase use of Acquisition Funds.

[[Page 45196]]

    Additionally, subpart K of part 152 allows for the partition of 
lands into smaller parcels where the interests are unified. Under ILCA, 
grants are available to successful bidders for partitions; however, the 
amendments do not affect the grants. Because conveyance of trust and 
restricted interests is generally voluntary, these amendments do not 
involve entitlements, grants, user fees, or loan programs, and 
therefore do not affect the budget of the Department or the rights and 
obligations of recipients.
    (e) In 25 CFR part 179, the respective rights of a life estate 
tenant and remaindermen are changed, as of June 20, 2006. This change 
entitles the life tenant to receipt of all income--including rents and 
profits, such as contract bonuses and royalties--from the land. 
However, the testator can still specify in the conveyance document 
distributions to the life tenant and remaindermen different from those 
established by AIPRA. The Department anticipates that this change in 
rights will not impact the budget.
    (f) The new regulation addressing tribal probate codes will not 
materially alter the Department's budget because the regulation merely 
implements the existing statutory requirement for Departmental review 
of tribal probate codes; nor does the regulation affect the rights and 
obligations of recipients, as tribes' probate codes were already 
subject to Departmental review.
    (4) This rule does not raise novel legal or policy issues arising 
out of legal mandates, the President's priorities, or the principles 
set forth in the Executive Order.
    Most of the regulatory changes directly implement statutory 
provisions and court orders that require certain action to meet Indian 
trust management responsibilities. Specifically, the rule implements 
requirements of AIPRA, the Trust Fund Management Reform Act of 1994 and 
court orders. The legal and policy issues related with this rulemaking 
have been the subject of legislation, judicial action, and 
consultations with tribes. They have been thoroughly discussed through 
the process of developing and implementing the Fiduciary Trust Model, 
discussed in the ``History of the Rule'' section of the preamble.
    Thus, the impact of the rule is confined to the Federal Government, 
individual Indians, and tribes and does not impose a compliance burden 
on the economy generally. Accordingly, this rule is not a ``significant 
regulatory action'' from an economic standpoint, nor does it otherwise 
create any inconsistencies or budgetary impacts to any other agency or 
Federal program.

B. The Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), requires 
Federal agencies to conduct a regulatory flexibility analysis when 
publishing a notice of rulemaking for any proposed or final rule. The 
regulatory flexibility analysis determines whether the rule will have a 
significant economic effect on a substantial number of small entities 
(i.e., small businesses, small organizations, and small governmental 
jurisdictions). Indian tribes are not considered to be small entities 
for the purposes of the Act and, consequently, no regulatory 
flexibility analysis has been done to address the effects on Indian 
tribes.
    Because the proposed rule is limited to probated estates, land, and 
assets within the United States and within tribal communities, it will 
not have significant adverse effects on competition, employment, 
investment, productivity, innovation, or the ability of the U.S.-based 
enterprises to compete with foreign-based enterprises. Accordingly, 
this proposed rule will not have an economic impact on a substantial 
number of small entities and requires no regulatory flexibility 
analysis.

C. Small Business Regulatory Enforcement Fairness Act of 1996

    The Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA), 5 U.S.C. 804(2), sets criteria for determining whether a rule 
is ``major.'' A rule is ``major'' if OMB finds that the rule will 
result in: (1) An annual effect on the economy of $100 million or more; 
(2) a major increase in costs or prices for consumers, individual 
industries, Federal, state, or local government agencies, or geographic 
regions; or (3) significant adverse effects on competition, employment, 
investment, productivity, innovation, or the ability of U.S.-based 
enterprises to compete with foreign-based enterprises.
    The proposed rule is not ``major'' within the meaning of SBREFA 
because it is exclusively confined to the Federal Government, 
individual Indians, and tribes, but the proposed rule may require some 
limited additional expenditures by tribes, as discussed in subsection 
(h) of the procedural requirements (Paperwork Reduction Act) of this 
preamble.
    However, the proposed rule will not result in the expenditure by 
State, local, or tribal governments, in the aggregate, or by the 
private sector of $100 million or more in any one year.
    Because the proposed rule is limited to probated estates, land, and 
assets within the United States and within tribal communities, it will 
not have significant adverse effects on competition, employment, 
investment, productivity, innovation, or the ability of the U.S.-based 
enterprises to compete with foreign-based enterprises. Accordingly, 
this proposed rule will not have an economic impact on a substantial 
number of small entities and requires no regulatory flexibility 
analysis.

D. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, requires Federal agencies to assess the effects of their 
regulatory actions on state, local, and tribal governments and the 
private sector. If the Federal agency promulgates a proposed or final 
rule with ``Federal'' mandates that may result in expenditures by 
state, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more in any one year, the Federal 
agency must prepare a written statement, including a cost-benefit 
analysis of the rule, under section 202 of the UMRA. The term ``Federal 
mandate'' means any provision in statute or regulation or any Federal 
court ruling that imposes ``an enforceable duty'' upon state, local, or 
tribal governments, and includes any condition of Federal assistance or 
a duty arising from participation in a voluntary Federal program that 
imposes such a duty.
    The Department has determined that the rule does not contain a 
Federal mandate that may result in expenditures of $100 million or more 
for state, local, and tribal governments in the aggregate, or by the 
private sector in any one year. The following discussion addresses each 
CFR part individually to identify Federal mandates.
25 CFR Part 15
    Most amendments to part 15 address the internal processes of the 
BIA (or tribe that has compacted or contracted to fulfill probate 
functions) in compiling probate files.
    <bullet> Part 15 contains a mandate for tribal governments to 
provide information when necessary to complete a probate file. This 
provision is aimed at requiring tribes to provide information that is 
already readily available to them, such as family history data.
    <bullet> Part 15 also contains a mandate for the public, presumably 
someone closely

[[Page 45197]]

associated with the decedent, to provide either a death certificate or 
other information regarding the death.
    Subsection (h) of the procedural requirements (Paperwork Reduction 
Act) of this preamble states the expected increase in cost burden on 
tribal governments of these mandates, which is minimal. The opportunity 
for tribes to adopt their own tribal probate codes is voluntary and 
does not qualify as a Federal mandate.
25 CFR Part 150
    The revised part 150 clarifies LTRO processes, services, and 
products. This part requires persons requesting LTRO services and 
products to provide certain information to allow the LTRO to identify 
the property for which the service or product is being requested. There 
is no mandate to obtain LTRO products or services, so the requirement 
to provide information in support of a request for products and 
services is not a Federal mandate.
25 CFR Part 152
    Amendments to part 152 provide tribes and individual Indians with 
opportunities to convey and consolidate their interests in trust or 
restricted land. The opportunities to convey land interests are 
essentially a voluntary Federal program. Therefore, the requirement 
does not equate to a Federal mandate.
    Part 152 requires applicants to include certain information in 
applications for acquisitions and conveyances that are available from 
the LTRO. Items required under part 152 that may be available from the 
LTRO include:
    <bullet> Maps.
    <bullet> Legal description of the land.
    <bullet> Title status of other interests.
    <bullet> Location of roads and rights of way.
    <bullet> Location of the land with respect to other lands in which 
the applicant has a trust interest.
    However, these items are available from sources other than LTRO, so 
these requirements do not require applicants to obtain products from 
the LTRO, and therefore do not translate into Federal mandates.
25 CFR Part 179
    Amendments to part 179 do not impose any duties on persons outside 
the Department of the Interior.
43 CFR Parts 4 and 30
    Amendments to 43 CFR part 4 (including those incorporated into the 
new 43 CFR part 30), related to adjudication of probate estates, 
clarify the process for renouncing an interest and allow consolidation 
agreements and purchases at probate. These opportunities are voluntary. 
The remainder of the amendments address OHA adjudication of probate 
estates and appeals. These amendments do not impose any Federal 
mandates on individual Indians, tribes, or others outside the 
Department of the Interior.
New 25 CFR Part 18 (Tribal Probate Codes)
    The new CFR part addressing tribal probate codes implements 
statutory authority for preparing a tribal probate code and statutory 
requirements for Secretarial approval of tribal probate codes. 
Preparation of a tribal probate code is voluntary; therefore, this 
regulation does not impose any Federal mandates on tribes.
    Section 205 of the UMRA requires the agency to identify and 
consider a reasonable number of regulatory alternatives to the rule and 
adopt the least costly, most cost-effective, or least burdensome 
alternative that achieves the objectives of the rule. The Department 
has determined that alternatives to this regulation are limited by 
practicality and feasibility, among other concerns, given that this 
regulation is the result of negotiated working group recommendations 
working within the confines of statutory and judicial mandates. For 
this reason, the primary alternative the Department examined was the 
baseline (i.e., the current CFR part or the absence of regulatory 
provisions, as appropriate). With respect to each proposed CFR part, 
the Department determined that the proposed language meets the 
objectives of the proposed rule.
    Section 203 of the UMRA requires the agency to develop a small 
government agency plan before establishing any regulatory requirements 
that may significantly or uniquely affect small governments, including 
tribal governments. The small government agency plan must include 
procedures for notifying potentially affected small governments, 
providing officials of affected small governments with the opportunity 
for meaningful and timely input in the development of regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing, educating, and advising small governments on compliance with 
the regulatory requirements. The Department has been operating under 
tribal consultation procedures that equate to a small government agency 
plan. The Department has developed these regulations in accordance with 
consultation procedures for notifying tribes, providing tribes with the 
opportunity for meaningful and timely input on the development of the 
regulation, and continues to inform, educate, and advise tribes on the 
contents of the regulation.

E. Governmental Actions and Interference With Constitutionally 
Protected Property Rights (Executive Order 12630)

    This proposed rule does not have significant ``takings'' 
implications. A taking occurs when private property is taken for public 
use without just compensation or without due process of law. The 
proposed rule includes a few instances where property may be considered 
``taken;'' however, just compensation is granted in each case. For 
example, 25 CFR part 152 allows a tribe to acquire land into trust 
status with the consent of only 50% of landowners, but must compensate 
all owners for their interests. Additionally, individual owners may 
preempt the tribe's right to purchase under certain circumstances. 
Additionally, for a consolidation by sale, the Secretary will seek only 
the consent of the tribe and of those owners who maintained a bona fide 
residence on the parcel or operated a bona fide farm, ranch or other 
business on the parcel for the preceding three years. Additional 
consent is required where any individual owner's undivided interest is 
worth more than $1,500 (i.e., consent of owners of at least 50% of the 
undivided ownership interest in the parcel). In each of these cases, 
even if an owner does not consent, the owner is provided with just 
compensation. The only other provisions of the proposed rule that may 
raise a question as to takings are those related to procedures for 
dealing with heirs or landowners whose whereabouts are unknown. 
However, in each of these cases, the proposed rule establishes the 
procedure to ensure that each individual whose whereabouts are unknown 
is afforded due process of law before being deprived of any specific 
real property interest.

F. Federalism (Executive Order 13132)

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), establishes certain requirements for Federal agencies 
issuing regulations, among other agency documents, that have ``Federal 
implications.'' A regulation has ``Federal implications'' when it has 
``substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.'' Section 
6 of the Executive Order prohibits any

[[Page 45198]]

agency from issuing a regulation that has Federal implications, imposes 
substantial direct compliance costs on state and local governments, and 
is not required by statute. Such a regulation may be issued only if the 
Federal Government provides the funds necessary to pay the direct 
compliance costs incurred by state and local governments, or the agency 
consults with state and local officials early in the process of 
developing the proposed regulation. Further, a Federal agency may issue 
a regulation that has federalism implications and preempts state law 
only if the agency consults with state and local officials early in the 
process of developing the proposed regulation.
    This proposed rule does not have federalism implications because it 
pertains solely to Federal-tribal relations and will not interfere with 
the roles, rights, and responsibilities of the States. The proposed 
rule primarily provides means for improving the trust relationship 
between the Department and individual Indians by allowing the 
Department to better serve beneficiaries'' interests. Additionally, the 
Federal government and the tribes have a government-to-government 
relationship that is independent of and does not affect the Federal 
government's relationship to the states or the balance of power and 
responsibilities among various levels of government. Therefore, in 
accordance with Executive Order 13132, it is determined that this 
proposed rule will not have sufficient federalism implications to 
warrant the preparation of a federalism assessment.

G. Civil Justice Reform (Executive Order 12988)

    Executive Order 12988 (61 FR 4729, February 7, 1996), section 3(a), 
requires Federal agencies to adhere to the following requirements: (1) 
Eliminate drafting errors and ambiguity; (2) write regulations to 
minimize litigation; (3) provide a clear legal standard for effective 
conduct rather than a general standard and promote simplification and 
burden reduction. Section 3(b) specifically requires that executive 
agencies make every reasonable effort to ensure that the regulations: 
(1) Clearly specify any preemptive effect; (2) clearly specify any 
effect on existing Federal law or regulation; (3) provide a clear legal 
standard for affecting conduct while promoting simplification and 
burden reduction; (4) specify the retroactive effect, if any; (5) 
adequately define key terms; and (6) address other important issues 
clearly affecting clarity and general draftsmanship under any 
guidelines issued by the Attorney General. Section 3(c) of the 
Executive Order 12988 requires agencies to review regulations in light 
of the applicable standards in sections 3(a) and 3(b) to determine 
whether they are met or whether it is unreasonable to meet one or more 
of them.
    The Department has determined that this proposed rule will not 
unduly burden the judicial system. Significant portions of the proposed 
rule will ensure that the judicial system is not overly burdened 
through the establishment of an administrative appeal process. For 
example, amendments to 43 CFR part 4, which describes administrative 
processes for challenging the outcome of a probate proceeding, will 
streamline the probate adjudication process. Additionally, the 
Department has determined that the proposed rule meets the applicable 
standards provided in sections 3(a) and 3(b) of Executive Order 12988. 
The Department has incorporated ``plain language'' approaches, as 
described in OMB's Writing User-Friendly Topics referred to in the 
Federal Register Document Drafting Handbook. Department attorneys 
provided input throughout the development and drafting of these 
regulations to provide clear legal standards, specify preemptive 
effects, specify the effect on existing Federal laws and regulations, 
and otherwise minimize the likelihood that litigation will result from 
an ambiguity in the regulations.

H. Paperwork Reduction Act

    The Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., 
prohibits a Federal agency from conducting or sponsoring a collection 
of information that requires OMB approval, unless such approval has 
been obtained and the collection request displays a currently valid OMB 
control number. Nor is any person required to respond to an information 
collection request that has not complied with the PRA. In accordance 
with 44 U.S.C. 3507(d), BIA has submitted the information collection 
and recordkeeping requirements of this proposed rule to OMB for review 
and approval. Four CFR parts being proposed today contain information 
collection requests: 25 CFR parts 15, 18, 150 and 152. The following 
tables, by part, describe the information collection requirements in 
each section of the proposed rule and any changes from the current 
rule.
25 CFR Part 15
    Title: Probate of Indian Estates, Except for Members of the Five 
Civilized Tribes.
    OMB Control Number: 1076-NEW.
    Requested Expiration Date: Three years from the approval date.
    Summary: This part contains the procedures that the Secretary of 
the Interior follows to initiate the probate of the trust estate of a 
deceased person for whom the Secretary holds an interest as trust or 
restricted property. The Secretary must perform the information 
collection requests in this part to obtain the information necessary to 
compile an accurate and complete probate file. This file will be 
forwarded to the Office of Hearings and Appeals (OHA) for disposition. 
Responses to these information collection requests are required to 
obtain benefits (e.g., make a claim against a probated estate) in 
accordance with the Secretary's sole statutory authority to probate 
estates (see 25 U.S.C. 372).
    Bureau Form Number: None.
    Frequency of Collection: One per probate.
    Description of Respondents: Indians, businesses, and tribal 
authorities.
    Total Annual Responses: 76,655.
    Total Annual Burden Hours: 1,037,433.
    The following is an explanation of the information collection 
requirements for 25 CFR part 15.
Section 15.4 What are the requirements for my will?
    The proposed rule adds a requirement for a testator and witnesses 
self-proving a will, codicil, or revocation to file affidavits. The 
Department has estimated that approximately 1,000 testators will choose 
to ``self-prove'' their wills each year and that it will take 
approximately 0.5 hours to make the affidavit before an official 
authorized to administer oaths and to attach the affidavit to the will 
= 500 burden hours. This represents an increase of 500 burden hours due 
to program change with no annualized startup, or operations and 
maintenance costs.
    Likewise, given that approximately 1,000 testators will choose to 
``self-prove'' their wills each year, approximately 2,000 witnesses 
will be required to file supporting affidavits at 0.5 hours each = 
1,000 burden hours. This represents an increase of 1,000 burden hours 
due to program change with no annualized startup, or operations and 
maintenance costs.
Section 15.104 Does BIA need a death certificate to prepare a probate 
file?
    The proposed rule adds a requirement for persons unable to provide 
a death certificate to provide as much as they know about the deceased, 
including: The state, city, reservation, location, date, and cause of 
death, the last known

[[Page 45199]]

address of the deceased, and names and addresses of others who may have 
information about the deceased. If no death certificate exists, they 
must provide this information in an affidavit. This information will 
ensure that BIA has the information it needs regarding the identity of 
the deceased to collect documents for the probate file. The requirement 
already existed to provide a death certificate or, when unable to 
provide a death certificate because none existed, newspaper articles, 
obituary, or death notices and a church or court record.
    The Department estimates that preparing the affidavit in lieu of 
providing a death certificate will impose an additional 1 hour burden 
per response to comply with this section. The existing estimated burden 
for locating and providing the death certificate is 4 hours per 
response. Assuming a respondent provides an affidavit in lieu of a 
death certificate only after spending the 4 hours searching 
unsuccessfully for the death certificate, 5 total burden hours per 
response are required to comply with this section. Assuming 
approximately 5,850 probates per year, the total burden will be 5,850 
responses x 5 hours per response = 29,250 burden hours. This represents 
an increase of 5,850 hours due to a programmatic change, with no 
annualized startup, or operations and maintenance costs.
Section 15.105 What other documents does BIA need to prepare a probate 
file?
    This section lists the items that BIA needs to prepare a probate 
file. The decedent's family and other knowledgeable members of the 
public are the most likely respondents for this information. The 
proposed rule adds several items of information that must be included 
in the probate file. These additional items are: (1) Adoption and 
guardianship papers concerning decedent's potential heirs or 
beneficiaries; (2) orders requiring payment of spousal support; (3) 
identification of person or entity to whom an interest is renounced; 
(4) court judgments regarding creditor claims; and (5) place of 
enrollment and tribal enrollment or census number of the decedent and 
potential heirs and beneficiaries.
    The Department estimates that providing these documents will add 
approximately 1.25 hours to each response. Assuming 21,235 respondents 
annually x 45.5 hours to complete this section = 966,192.5 burden 
hours. This is an increase of approximately 26,543.75 hours due to a 
program change, with no annualized startup, or operations and 
maintenance costs.
Section 15.201 Can I get funds from the decedent's IIM account for 
funeral services?
    There has been no change to the information collection requirements 
in this section. The Department estimates that there will be one 
request for funeral expenses per each of the estimated 5,850 probates 
per year, at an estimated 2 hours per response = 11,700 burden hours, 
with no annualized startup, or operations and maintenance costs.
Section 15.202 If the decedent owed me money, how do I file a claim 
against the estate?
    The proposed rule adds a requirement that creditors provide 
information on their claims. Specifically, the rule requires creditors 
to file with the Secretary an affidavit and an itemized statement of 
the debt, including copies of any documents (such as signed notes, 
mortgages, account records, billing records, and journal entries) 
necessary to prove the indebtedness.
    The Department estimates that, on average, approximately 6 creditor 
claims per probate estate will be filed and that it will take creditors 
approximately 0.5 hours to provide this information. The most recent 
Paperwork Reduction Act submission purported to assume that 6 claims 
per probate estate would be filed, but at 5,850 probates per year, the 
previous assumption of 127,410 respondents appears to be erroneous. 
Assuming 35,100 responses (6 claims per probate estate x 5,850 probate 
estates), the Department estimates the burden hours = 35,100 responses 
x 0.5 = 17,550 burden hours. This is a decrease of approximately 46,155 
hours due to a program change, with no annualized startup, or 
operations and maintenance costs.
    The proposed rule also adds a requirement for the person filing a 
claim against the estate to file an affidavit. The Department has 
determined that this does not qualify as ``information'' under 5 CFR 
1320.3(h)(1) because it entails no burden other than that necessary to 
identify the claimant, the date, the claimant's address, and the nature 
of the instrument as a claim against the estate.
Section 15.403 What happens after the probate decision is made?
    This section provides that a request for de novo review may be 
filed within 30 days of a probate decision. The information collection 
requirements that had been included in this section have been moved to 
43 CFR 4, but are exempt under 5 CFR 1320.4(a)(2) because they relate 
to the conduct of administrative actions against specific individuals. 
Additionally, all that is required is the filing of a notice of appeal. 
This represents a decrease of 53,088 hours due to a program change.
Section 15.505 What information must tribes provide BIA to complete the 
probate file?
    This new section requires tribes to provide any information the 
Secretary requires to complete the probate file, such as enrollment or 
family data. The information required by the Secretary will include 
documents that the tribe should have readily available. We assumed 
that, of the 5,850 probate cases, at least one decedent would come from 
each of the 562 Federally recognized tribes. On average, a tribe will 
have to provide information for approximately 10 of the 5,850 probate 
cases per year. We estimate that each tribe will require 2 hours to 
assist in completing the probate file x 10 responses annually x 562 
Federal recognized tribes = 11,240 hours to ensure completion of 
probate files. This is a new requirement, which incorporates 11,240 
hours as a program change, with no annualized startup, or operations 
and maintenance costs.


    Note: The ``Old CFR Section'' numbers in the table below are 
those as of the last Paperwork Reduction Act submission for 25 CFR 
part 15 in December 2003.


--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            No. of                 Total hours   Currently
       Old CFR  section          New CFR        Description of info       resps per    Hours per    requested     approved    Explanation of difference
                                 section       collection requirement         yr          resp      (Annual)*      hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                      15.4  File affidavit to self-            1,000          0.5          500            0  New section requires
                                             prove will, codicil, or                                                          testator affidavit to self-
                                             revocation.                                                                      prove will.
                                      15.4  File supporting affidavit          2,000          0.5        1,000            0  New section requires
                                             to self-prove will,                                                              witness affidavits to self-
                                             codicil, or revocation.                                                          prove will.

[[Page 45200]]

 
15.101.......................       15.104  Reporting req.-death               5,850            5       29,250       23,400  New section requires
                                             certificate.                                                                     additional information
                                                                                                                              where a death certificate
                                                                                                                              is not provided. 3
15.106.......................       15.201  Reporting funeral expenses.        5,850            2       11,700       11,700  No change.
15.104.......................       15.105  Provide probate documents..       21,235         45.5      966,193      939,649  Amendments delete
                                                                                                                              requirement for birth
                                                                                                                              certificate, but add other
                                                                                                                              requirements.
15.109.......................  ...........  Provide disclaimer info (\1/           0            0            0        7,887  Section deleted.
                                             4\).
15.303.......................       15.202  File claim against estate            N/A          N/A          N/A  ...........  ...........................
                                             (affidavit).
15.203.......................          N/A  Provide response to                    0            0            0        2,972  This requirement has been
                                             transmittal.                                                                     deleted.
15.303.......................       15.202  Provide info on creditor          35,100          0.5       17,550       63,705  Decrease to reflect 6
                                             claim (6 per probate).                                                           claims per probate.
15.402.......................       15.403  Provide info for filing                0            0            0       53,088  Now only have to file a
                                             appeal.                                                                          notice of appeal; info
                                                                                                                              collection requirements
                                                                                                                              moved to 43 part CFR 4.
                                    15.505  Provide tribal information         5,620            2       11,240            0  New requirement for tribes
                                             for probate file.\2\.                                                            to provide enrollment
                                                                                                                              information, upon request.
                              -------------                             ----------------------------------------------------
    Total....................  ...........  ...........................       76,655  ...........    1,037,433    1,094,514  ...........................
--------------------------------------------------------------------------------------------------------------------------------------------------------

25 CFR Part 18
    Title: Tribal Probate Codes.
    OMB Control Number: 1076-NEW.
    Requested Expiration Date: Three years from the approval date.
    Summary: This part contains the procedures that the Secretary of 
the Interior follows to review and approve tribal probate codes and 
amendments to tribal probate codes. This part also explains the 
procedure the tribe must follow to begin the approval process for a 
tribal probate code or amendment to the code, as well as dates on when 
the tribal probate code becomes effective.
    Bureau Form Number: None.
    Frequency of Collection: On occasion.
    Description of Respondents: Tribal authorities.
    Total Annual Responses: 100.
    Total Annual Burden Hours: 50.
    The following is an explanation of the information collection 
requirements for 25 CFR part 18.
Section 18.4 How does a tribe request approval for a probate code?
    The proposed rule adds a requirement for a tribe enacting a new 
tribal probate code or amending an existing tribal probate code to 
submit the code or amendment to the Secretary or approval. The 
Department has estimated that, on average, approximately 100 tribes 
will submit new codes or amend their existing codes each year, and that 
it will take approximately 0.5 hours to submit the code or amendment to 
the Secretary = 50 burden hours. This represents an increase of 50 
burden hours due to program change with no annualized startup, or 
operations and maintenance costs.

----------------------------------------------------------------------------------------------------------------
                        Description of       No. of                 Total hours   Currently
   New CFR section      info collection    resps per    Hours per    requested     approved     Explanation of
                          requirement          yr          resp      (annual)*      hours         difference
----------------------------------------------------------------------------------------------------------------
18.4................  Submit tribal               100          0.5           50            0  New section
                       probate code or                                                         requires
                       amendment.                                                              submission of
                                                                                               tribal probate
                                                                                               code or amendment
                                                                                               for approval.
                                         ----------------------------------------------------
    Total...........  ..................          100  ...........           50            0
----------------------------------------------------------------------------------------------------------------

25 CFR Part 150
    Title: Indian Land Record of Title.
    OMB Control Number: 1076-NEW.
    Summary: This part establishes the Land Title and Records Office 
(LTRO) as the official record of land records and title instruments 
affecting Indian land. The LTRO protects ownership interests in trust 
and restricted Indian land by recording and maintaining title documents 
and providing services and products to Indians, tribes, and 
individuals. The proposed part 150 replaces the existing part in its 
entirety to provide clarification of LTRO's procedures and increase the 
ability of the LTRO to provide services and products to Indians, 
tribes, and the public. The LTRO provides access to information in the 
Indian Land Record of Title to members of the public, except in those 
instances where access would violate law or policy restricting access 
to such records.
    Bureau Form Number: N/A.
    Frequency of Collection: One per Indian, tribal authority, business 
or other non-profit, Federal government, or other member of the public.

[[Page 45201]]

    Description of Respondents: Indians, tribal authorities, businesses 
or other non-profits, Federal government, and other members of the 
public.
    Total Annual Responses: 12,686.
    Total Annual Burden Hours: 12,696.
    The following is an explanation of the information collection 
requirements for 25 CFR part 150 and any changes from the current rule.
    Total Non-Hour Burden: $907,795.
Section 150.208 How do I correct an error or omission in a title 
instrument or LTRO product or service?
    Section 150.208 requires persons who discover an error or omission 
in an LTRO record to provide the LTRO with: (1) a written description 
of the error or omission; and (2) any supporting documentation.
    The Department estimates that a minimal number of persons and 
entities requesting services and products from LTRO each year will 
identify an error or omission in an LTRO record. Most errors and 
omissions are identified through an in-house quality assurance process 
wherein the agency filing the document with the LTRO reviews the 
document to identify and address errors and omissions. The Department 
also estimates that it will take approximately 2 hours to write a 
statement describing the error or omission and research, copy, and 
provide either via mail or in person any documentation supporting the 
claim that an error or omission exists.
    Burden hours = 10 persons and entities identifying errors or 
omissions per year x 2 hours = 20 burden hours. The total burden costs 
based on a $18.52/hour cost estimate multiplied by the total hourly 
burden per year = $370.40. This represents an adjustment to account for 
a previously unidentified information collection request burden, with 
no annualized startup, or operations and maintenance costs.
Section 150.302(b) How do I order services and products from the LTRO?
    The proposed revisions to part 150 provided in subsection (b) of 
this section include a requirement for persons requesting a product or 
service from the LTRO to identify the property in which they are 
interested by providing one of the following: (1) A legal description 
of the property; (2) an identification number for the tract; or (3) the 
identification number of the owner of the tract. The provision does not 
require that this information be provided in any specific form. The 
anticipated respondents include individuals, tribes, governmental 
agencies, and oil, gas, and title abstract companies.
    Each of the LTRO's products and services is provided with respect 
to a specific tract or tracts or property. In nearly all cases, the 
Bureau of Indian Affairs or the tribal agency requests a service or 
product from the LTRO on behalf of the individual or entity. These 
estimates include agency requests on behalf of the member of the 
public.
    The Department estimates that 6,338 persons or entities request 
services and products from LTRO approximately 2 times each year, for a 
total of 12,686 requests. Persons who own an interest in the land for 
which they are requesting a service or product will usually have a 
legal description or identification number readily available. For 
example, most new heirs will have a legal description of the property 
in which they are interested from the inventory of the probated estate. 
If the person received the property by deed, then the agency would have 
provided the person with a deed. However, for persons who are not co-
owners in the property, this information may be more difficult to 
obtain; therefore, the Department estimates that the person or entity 
will be unable to provide this information for approximately half of 
the total requests for LTRO products or services each year. (See 
section 150.302(c), which provides applicants with the option of 
providing alternate information). For this reason, the Department 
estimates that 3,169 persons or entities (one half of the total 6,338 
respondents) will request services and products from LTRO approximately 
2 times per year and provide the information requested in this section, 
rather than provide the alternate information permitted by section 
150.302(b), for a total of 6,338 responses. The Department is using 1 
hour as an average baseline estimate for the time it will take to 
obtain information necessary to identify the tract of property for 
which they are requesting the product or service and provide that 
information to the LTRO either by mail or in person. This average 
incorporates the longer time (generally 4-8 hours) to survey to obtain 
an initial legal description, as well as the shorter time (0.5 hours) 
it takes to obtain the identification number or other identifying 
information for instruments that have already been recorded.
    Burden hours therefore equal 6,338 requests (3,169 persons or 
entities requesting products or services 2 times a year) x 1 hour per 
request = 6,338 burden hours. The total burden costs based on a $18.52/
hour cost estimate multiplied by the total hourly burden per year = 
$117,380. This represents an adjustment to account for a previously 
unidentified information collection request burden, with no annualized 
startup costs. Operations and maintenance costs in the form of fees are 
estimated to be $453,897.50 (one half of the total fees $907,795).
Section 150.302(c) How do I order services and products from the LTRO?
    The proposed revisions to part 150 provided in subsection (c) of 
this section include a requirement for persons requesting LTRO products 
or services to provide alternate information to identify the property 
if they are unable to provide the information listed in section 
150.302(b). Section 150.302(c) allows the applicant to submit any other 
information that the LTRO may use to identify an owner of the tract of 
land, including but not limited to: name and tribal affiliation of an 
owner, the recording number of the instrument, or an allotment number.
    Because this information is alternate information, the Department 
estimates that of the estimated 6,338 persons and entities requesting 
services and products from the LTRO 2 times each year, 3,169 will be 
unable to provide the information required by section 152.302(b), and 
therefore submit the information in section 150.302(c). The Department 
also estimates that it will take approximately 1 hour to obtain and 
provide information necessary to identify the tract of property for 
which they are requesting the product or service. Burden hours = 3,169 
requests (3,169 persons and entities x 2 times per year) x 1 hour = 
6,338 burden hours. The total burden costs based on a $18.52/hour cost 
estimate multiplied by the total hourly burden per year = $117,380. 
This represents an adjustment to account for a previously unidentified 
information collection request burden, with no annualized startup 
costs. Operations and maintenance costs in the form of fees are 
estimated to be $453,897.50 (one half of the total fees $907,795).

[[Page 45202]]



----------------------------------------------------------------------------------------------------------------
                                                          Responses                   Total
                           Description of      No. of        per         Hourly       hourly     Explanation of
     New CFR section       info collection  respondents   respondent   burden per     burden       difference
                             requirement      (annual)     (annual)     response    (annual)*
----------------------------------------------------------------------------------------------------------------
150.208.................  Provide written            10            1            2           20  Adjustment to
                           description and                                                       account for
                           supporting                                                            previously
                           documentation                                                         unidentified
                           of error or                                                           burden.
                           omission.
150.302(b)..............  Provide                 3,169            2            1        6,338  Adjustment to
                           information to                                                        account for
                           identify                                                              previously
                           property when                                                         unidentified
                           requesting                                                            burden.
                           product or
                           service.
150.302(c)..............   Provide other          3,169            2            1        6,338  Adjustment to
                           information if                                                        account for
                           information in                                                        previously
                           150.302(b) is                                                         unidentified
                           not available.                                                        burden.
                                           ----------------------------------------------------
    Responses...........  ................       12,686  ...........  ...........       12,696
----------------------------------------------------------------------------------------------------------------

25 CFR Part 152
    Title: Conveyances of Trust or Restricted Land; Removal of Trust or 
Restricted Status.
    OMB Control Number: 1076-NEW.
    Summary: This part contains the procedures that the Secretary of 
the Interior follows to review and approve of conveyances of Indian 
trust and restricted land and removal of trust and restricted status 
from Indian land. The Secretary must perform the information collection 
requests in this part to obtain the information necessary to complete 
the requested transaction. An ``Application for Consolidation by Sale'' 
form must be submitted to apply for consolidations by sale. Responses 
to these information collection requests are required to obtain 
benefits (e.g., complete the requested transaction).
    Bureau Form Number: There is a form, but no number.
    Frequency of Collection: Occasional.
    Description of Respondents: Indians and tribal authorities.
    Total Annual Responses: 1,250.
    Total Annual Burden Hours: 2,103.
    The following is an explanation of the information collection 
requirements for 25 CFR part 152 and any changes from the current rule.
Section 152.3 Will the Secretary provide ownership information?
    This section provides that certain persons, listed in section 
152.4, may request the Land Title and Records Office (LTRO) to provide 
the names and mailing addresses of owners of a parcel of trust or 
restricted lands, the location of the parcel, and the percentage of 
undivided interest owned by each individual by providing a written 
request containing:
    <bullet> A legal description or other information allowing the 
parcel to be identified; and
    <bullet> A description of how the applicant meets the requirements 
of 152.4 (i.e., that the applicant is an owner of a parcel of trust or 
restricted land on the same reservation, the tribe that exercises 
jurisdiction over the parcel, a person eligible for membership in the 
tribe that exercises jurisdiction over the parcel, or a person or 
entity that is leasing, using, consolidating--or applying to lease, 
use, or consolidate trust or consolidated lands on that reservation).
    The Department estimates that 200 persons and tribes each year will 
request the above LTRO information and that it will take approximately 
0.5 hours to compile and provide the information and draft and provide 
the written request.
    Burden hours = 200 persons and tribes requesting LTRO information x 
0.5 hours = 100 total burden hours, at $15/hour for a cost to the 
public of $1,500. This represents a program change, with no annualized 
startup, or operations and maintenance costs.
Section 152.102 What must a land consolidation plan include?
    A tribal consolidation plan is a plan for eliminating fractionation 
and/or consolidating tribal land holdings, that specifies what land or 
interests are to be conveyed and what land or interests are to be 
purchased with the proceeds of the sale. Under section 152.105, in 
order for the Secretary to take action on the plan, the tribe must 
submit the plan to the Secretary for approval. The Department estimates 
that 50 tribes will prepare a consolidation plan each year, and that it 
will take 5 hours for each tribe to prepare the plan.
    Burden hours = 50 tribes x 5 hours = 250 total burden hours, at 
$15/hour for a cost to the public of $3,750. This represents a program 
change, with no annualized startup, or operations and maintenance 
costs.
Section 152.105 How does a tribe receive approval for a sale or 
exchange under a land consolidation plan?
    This section requires a tribe requesting a sale or exchange 
pursuant to an approved tribal land consolidation plan to submit a 
tribal resolution to the Secretary. Tribes prepare tribal resolutions 
as a usual and customary business practice. However, the following 
estimates capture how long it would take the tribe to copy and provide 
the resolution to the Department. The Department estimates that, each 
year, 50 tribes with consolidation plans will request an average of 2 
sales or exchanges, and that it will take 0.60 hours to provide a 
tribal resolution in support of each sale or exchange.
    Burden hours = 50 tribes x 2 sales and exchanges x 0.60 hours = 60 
total burden hours, at $15/hour for a cost to the public of $900. This 
represents a program change, with no annualized startup, or operations 
and maintenance costs.
Section 152.107 In the absence of an approved land consolidation plan, 
how does a tribe get approval for an exchange of tribal land?
    This section requires a tribe requesting a sale or exchange in the 
absence of an approved tribal land consolidation plan to submit a 
tribal resolution to the Secretary. The Department estimates that, each 
year, 100 tribes without consolidation plans will request an average of 
1 sale or exchange, and that it will take 0.60 hours to provide a 
tribal resolution in support of each sale or exchange.
    Burden hours = 100 tribes x 1 sale or exchange x 0.60 hours = 60 
total burden hours, at $15/hour for a cost to the public of $900. This 
represents a program change, with no annualized startup, or operations 
and maintenance costs.
Section 152.206 How does an owner initiate a negotiated sale, gift, or 
exchange?
    This section requires an owner to submit to the Secretary a written 
request for negotiated sale, gift, or exchange containing various items 
of information,

[[Page 45203]]

including: a description of the land, the grantee and his or her tribal 
affiliation, any limitations known by the grantor of the right to 
convey, any intention to reserve rights to the land, whether the owner 
waives his right to fair market value, and the terms of the sale, gift, 
or exchange. The Department estimates that 200 tribal and individual 
Indian owners will request a negotiated sale, gift, or exchange each 
year, at an average of one request per person, and that it will take 
4.2 hours to make a request in compliance with this section.
    Burden hours = 200 tribes/individual Indian owners x average of 1 
request per person x 4.2 hours = 840 total burden hours, at $15/hour 
for a cost to the public of $12,600. This represents a program change, 
with no annualized startup, or operations and maintenance costs.
Section 152.217 When can a co-owner acquire an interest previously 
acquired on behalf of a tribe?
    Subsection (b) of this section provides that a co-owner may request 
notification when a tribe initially acquires interest in a given tract 
under the Indian Land Consolidation Program. The response to this 
request will facilitate the owner's ability to exercise the purchase 
option. The Department estimates that 50 owners will request 
notification each year and that it will take 0.25 hours to provide the 
request and contact information to allow the Department to notify the 
co-owner when appropriate.
    Burden hours = 50 co-owners who will request notification x 1 
request per co-owner x 0.25 hours = 12.5 total burden hours, at $15/
hour for a cost to the public of $188 (rounded up from $187.5). This 
represents a program change, with no annualized startup, or operations 
and maintenance costs.
Section 152.219 How does a transaction affect collection of 
construction costs for irrigation projects?
    Subsection (b) of this section provides that if land is conveyed in 
fee, the person acquiring the land in fee must enter into an agreement 
to pay the pro rata share of the construction project chargeable to the 
land, all construction costs that accrue in the future, and all future 
charges assessable to the land based on the annual cost of operations 
and maintenance of the irrigation system. The Department estimates that 
200 persons will acquire trust or restricted land in fee and that it 
will take 1 hour to enter into the required agreement.
    Burden hours = 200 persons acquiring land in fee status x 1 request 
per person x 1 hour = 200 total burden hours, at $15/hour for a cost to 
the public of $3,000. This represents a program change, with no 
annualized startup, or operations and maintenance costs.
Section 152.303 How does a tribe apply for a parcel purchase?
    This section requires tribes who want to initiate a tribal parcel 
purchase to submit an application including various items of 
information, including: an appraisal which establishes the fair market 
value of the parcel as of the date the application is filed; a 
certified title report and/or consent forms from the owners, reflecting 
that the applicant has either acquired at least 50% of the trust or 
restricted interests in the parcel or obtained the consent of the 
owners of at least 50% of such interests; and a deposit of the purchase 
funds needed to compensate the owners of all of the outstanding trust 
or restricted interests in the parcel, based on the applicant's 
appraisal. The Department estimates that 50 tribes each year will apply 
for a tribal parcel purchase and that it will take, on average, 
approximately 2 hours for each to provide the necessary applicant and 
tract information. The remaining components of the application are 
provided by either the Bureau of Indian Affairs or the Office of the 
Special Trustee for American Indians.
    Burden hours = 50 tribes x 1 application per tribe x 2 hours = 100 
total burden hours, at $15/hour for a cost to the public of $1,500. 
This represents a program change, with no annualized startup, or 
operations and maintenance costs.
Section 152.403 How do I apply to consolidate a parcel by sale?
    This section allows eligible bidders to apply to the Secretary for 
approval on the Bureau form, ``Application for Consolidation by Sale,'' 
to consolidate interests in a highly fractionated parcel by selling 
interests to one owner. The Department estimates that 100 eligible 
bidders will apply for a consolidation by sale each year, at an average 
of one application per eligible bidder, and that it will take 0.5 hours 
to prepare the application for consolidation by sale.
    Burden hours = 100 eligible bidders x 1 application per eligible 
bidder x 0.5 hours = 50 total burden hours, at $15/hour for a cost to 
the public of $750. This represents a program change, with no 
annualized startup, or operations and maintenance costs.
Section 152.412 How does a tribe reserve its right to match the highest 
bid?
    This section allows tribes to match the highest bid from a non-
member of the tribe by submitting a copy of the tribal law or 
resolution to the Secretary. The Department estimates that 50 tribes 
will request the opportunity to match the highest bid to buy property, 
at an average of one request per tribe, each year, and that it will 
take 0.60 hours to prepare the resolution in support of the request.
    Burden hours = 50 tribes x 1 request per tribe x 0.6 hours = 30 
total burden hours, at $15/hour for a cost to the public of $450. This 
represents a program change, with no annualized startup, or operations 
and maintenance costs.
Section 152.503 How can an owner initiate a partition action?
    This section allows owners of fractional interests in a parcel to 
apply to the Secretary for partition of the parcel in order to 
consolidate interests in a smaller parcel. The application for 
partition must contain the legal descriptions, appraisals, and 
ownerships of the tract to be partitioned with smaller resulting 
tracts. The Department estimates that 50 owners each year will submit 
an application for partition, at an average of one application per 
owner, and that, on average, it takes approximately 2 hours to provide 
the necessary applicant and tract information. The Bureau of Indian 
Affairs provides the remaining information necessary for the 
transaction, including the legal description and the owners of the 
tract, while the Office of Appraisal Services provides the appraisal.
    Burden hours = 50 tribes x 1 application per tribe x 2 hours = 100 
total burden hours, at $15/hour for a cost to the public of $1,500. 
This represents a program change, with no annualized startup, or 
operations and maintenance costs.
Section 152.602 How do owners submit an application for approval of a 
mortgage or deed of trust?
    This section allows the owner of the proposed mortgagee or 
beneficiary to submit an application for approval of a mortgage or deed 
of trust containing the executed mortgage or deed of trust, the 
promissory note, other documents regarding remedy in the case of 
default, an appraisal, the loan application, a credit report, title 
reports, and any necessary environmental or historic preservation 
documentation. The

[[Page 45204]]

Department estimates that 100 owners will request a mortgage or deed of 
trust, at an average of one request per owner, and that it will take 
approximately 3 hours to complete the application.
    Burden hours = 100 owners x 1 application per owner x 3 hours = 300 
total burden hours, at $15/hour for a cost to the public of $4,500. 
This represents a program change, with no annualized startup, or 
operations and maintenance costs.

----------------------------------------------------------------------------------------------------------------
                      Description of                                  Total hours   Currently
 New CFR  section    info collection   No. of resps per   Hours per    requested     approved    Explanation of
                       requirement            yr            resp       (Annual)*      hours        difference
----------------------------------------------------------------------------------------------------------------
152.3.............  Request for        200.............         0.5         100              0  Program change.
                     information on
                     parcel owners.
152.102...........  Tribal land        50..............           5         250              0  Program change.
                     consolidation
                     plan.
152.105...........  Tribal resolution  100.............      0.0160          60              0  Program change.
                     requesting sale
                     or exchange.
152.107...........  Tribal resolution  100.............        0.60          60              0  Program change.
                     in absence of
                     land
                     consolidation
                     plan.
152.206...........  Negotiated sale,   200.............         4.2         840              0  Program change.
                     gift, or
                     exchange.
152.217(b)........  Request for        50..............        0.25          12.5            0  Program change.
                     notice of tribal
                     acquisition.
152.219(b)........  Agreement for      200.............           1         200              0  Program change.
                     payments with
                     fee conveyance.
152.303...........  Tribal parcel      50..............           2         100              0  Program change.
                     purchase.
152.403...........  Consolidation by   100.............         0.5          50              0  Program change.
                     sale application.
152.412...........  Copy of tribal     50..............        0.60          30              0  Program change.
                     law or
                     resolution
                     stating intent
                     to match high
                     bid.
152.503...........  Partition........  50..............           2         100              0  Program change.
152.602...........  Mortgage or Deed   100.............           3         300              0  Program change.
                     of Trust.
                                      ---------------------------------------------------------
    Total.........  .................  Responses =       ..........       2,103              0
                                        1,250.
----------------------------------------------------------------------------------------------------------------

    The Department invites comments on the information collection 
requirements of this proposed rule. You may submit comments to the Desk 
Officer for the Department of Interior by e-mail at OIRA--
<a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="1b5f5458505e4f5b747679357e746b357c746d">[email protected]</a> or by facsimile at (202) 365-6566. Please also send 
a copy of your comments to BIA at the location specified under the 
heading ADDRESSES.
    You can receive a copy of BIA's submission to OMB, including a copy 
of the form related to 25 CFR section 152.403, by contacting the person 
listed in the FOR FURTHER INFORMATION CONTACT section, or by requesting 
the information from the BIA Information Collection Clearance Officer, 
625 Herndon Parkway, Herndon, VA 20970.
    Comments should address: (1) Whether the collection of information 
is necessary for the proper performance of the Program, including the 
practical utility of the information to the BIA; (2) the accuracy of 
the BIA's burden estimates; (3) ways to enhance the quality, utility, 
and clarity of the information collected; and (4) ways to minimize the 
burden of collection of information on the respondents, including the 
use of automated collection techniques or other forms of information 
technology.
    Organizations and individuals who submit comments on the 
information collection requirements should be aware that the Department 
keeps such comments available for public inspection during regular 
business hours. If you wish to have your name and address withheld from 
public inspection, you must state this prominently at the beginning of 
any comments you make. The Department will honor your request to the 
extent allowable by law. We may withhold the information for other 
reasons.

I. National Environmental Policy Act (NEPA)

    The National Environmental Policy Act of 1969 (NEPA) requires 
Federal agencies to perform an environmental assessment or 
environmental impact statement for all ``major Federal actions.'' This 
rule does not constitute a major Federal action significantly affecting 
the quality of the human environment. An environmental assessment is 
not required because any environmental effects of this rule are too 
broad, speculative, or conjectural to lend themselves to meaningful 
analysis. Further, the Federal actions under the proposed rule (e.g., 
approval or disapproval of leases of Indian lands), where they qualify 
as ``major Federal actions,'' will be subject to the NEPA process at 
the time of the action itself, either collectively or case-by-case.

J. Government-to-Government Relationships With Tribes (Executive Order 
13175)

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments,'' Executive Order 13175 (59 FR 22951, November 6, 2000) 
and 512 DM2, we have evaluated the potential effects on Federally 
recognized Indian tribes and Indian trust assets and have identified 
potential effects. The Department has engaged tribal government 
representatives in developing the Fiduciary Trust Model, which served 
as the basis for this rulemaking, has provided tribal government 
representatives with advance copies of this proposed rule, and provides 
additional notice to tribal government through this Federal Register 
notice. Subsequently, the Department will follow Departmental protocols 
for consulting with tribal governments on this proposed rule. 
Specifically, the Department is planning an additional three 
consultation meetings to exchange information with tribes on the 
proposed rule and potential impacts, and plans to carefully review 
comments received by tribal government officials. These actions enable 
tribal officials and the affected tribal constituency throughout Indian 
country to have meaningful and timely

[[Page 45205]]

input in the development of the final rule, while reinforcing positive 
intergovernmental relations with tribal governments.

K. Energy Effects (Executive Order 13211)

    Executive Order 13211 addresses regulations that significantly 
affect energy supply, distribution, and use. The Executive Order 
requires agencies to prepare Statements of Energy Effects when 
undertaking certain actions. In accordance with this Executive Order, 
this rule does not have a significant effect on the nation's energy 
supply, distribution, or use. The proposed rule is restricted to 
addressing assets held in trust or restricted status for individual 
Indians or tribes.

List of Subjects

25 CFR Part 15

    Estates, Indians-law.

25 CFR Part 18

    Estates, Indians-lands.

25 CFR Part 150

    Indians, Indians-lands.

25 CFR Part 152

    Indians, Indians-lands.

25 CFR Part 179

    Estates, Indians-lands.

43 CFR Part 4

    Administrative practice and procedure, Claims.

43 CFR Part 30

    Administrative practice and procedure, Claims, Equal access to 
justice, Estates, Indians, Lawyers.

    For the reasons given in the preamble, the Department of the 
Interior proposes to amend chapter I of title 25 and part 4 of title 43 
for the Code of Federal Regulations as set forth below.

Title 25--Indians

    Chapter I--Bureau of Indian Affairs, Department of the Interior
    1. Revise part 15 to read as follows:

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

Sec.
Subpart A--Introduction
15.1 What is the purpose of this part?
15.2 What terms do I need to know?
15.3 Who can make a will disposing of trust or restricted land or 
trust personalty?
15.4 What are the requirements for my will?
15.5 Can I revoke my will?
15.6 Can my will be deemed revoked by the operation of the law of 
any state?
15.7 What is a self-proved will?
15.8 Can I make my will, codicil, or revocation self-proved?
15.9 Do affidavits for my self-proved will, codicil, or revocation 
have to be in a certain format?
15.10 Will the Secretary probate all the land or assets in an 
estate?
15.11 How does the probate process work?
15.12 What happens if assets in a trust estate may be diminished or 
destroyed while the probate is pending?
Subpart B--Starting the Probate Process
15.101 When should I notify BIA of a death?
15.102 Who may notify BIA of a death?
15.103 How do I begin the probate process?
15.104 Does BIA need a death certificate to prepare a probate file?
15.105 What other documents does BIA need to prepare a probate file?
15.106 Can a probate case be opened when an owner of an interest has 
been absent?
15.107 Who prepares a probate file?
15.108 If the decedent was not an enrolled member of a tribe or was 
a member of more than one tribe, who prepares the probate file?
Subpart C--Obtaining Emergency Assistance and Filing Claims
15.201 Can I get funds from the decedent's IIM account for funeral 
services?
15.202 If the decedent owed me money, how do I file a claim against 
the estate?
Subpart D--Preparing the Probate File
15.301 What will BIA do with the documents that I provide?
15.302 What items must BIA include in the probate file?
15.303 When is a probate file complete?
Subpart E--Probate Processing and Distributions
15.401 What happens after BIA prepares the probate file?
15.402 What happens after the probate file is referred to OHA?
15.403 What happens after the probate decision is made?
Subpart F--Information and Records
15.501 How can I find out the status of a probate?
15.502 Who owns the records associated with this part?
15.503 How must records associated with this part be preserved?
15.504 Who may inspect these records?
15.505 What information must tribes provide BIA to complete the 
probate file?
15.506 How does the Paperwork Reduction Act affect this part?

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

    Cross Reference: For special rules applying to proceedings in 
Indian Probate (Determination of Heirs and Approval of Wills, Except 
for Members of the Five Civilized Tribes and Osage Indians), 
including hearings and appeals within the jurisdiction of the Office 
of Hearings and Appeals, see title 43, Code of Federal Regulations, 
part 4, subpart D; Funds of deceased Indians other than the Five 
Civilized Tribes, see title 25 Code of Federal Regulations, part 
115.

Subpart A--Introduction


Sec.  15.1  What is the purpose of this part?

    This part contains the procedures that we follow to initiate the 
probate of the trust estate of a deceased person for whom we hold an 
interest as trust or restricted land or trust personalty. This part 
tells you how to file the necessary documents to probate the trust 
estate. This part also describes how probates will be processed by BIA, 
and how probates will be sent to the Office of Hearings and Appeals 
(OHA) for disposition.


Sec.  15.2  What terms do I need to know?

    As used in this part:
    Act means the Indian Land Consolidation Act and its amendments, 
including Public Law 108-374, the American Indian Probate Reform Act of 
2004 (AIPRA).
    Administrative law judge (ALJ) means an administrative law judge 
with OHA appointed under the Administrative Procedure Act, 5 U.S.C. 
3105.
    Agency means:
    (1) The Bureau of Indian Affairs (BIA) agency office, or any other 
designated office in BIA, having jurisdiction over trust or restricted 
land and trust financial assets; and
    (2) Any office of a tribe that has entered into a contract or 
compact to fulfill the probate function under 25 U.S.C. 450f or 458cc.
    Attorney Decision Maker (ADM) means a licensed attorney with OHA 
who conducts a summary probate proceeding and renders a decision that 
is subject to de novo review by an administrative law judge or Indian 
probate judge.
    BIA means the Bureau of Indian Affairs within the Department of the 
Interior.
    Child includes any adopted child.
    Codicil means a supplement or addition to a will, executed with the 
same formalities as a will. It may explain, modify, add to, or revoke 
provisions in an existing will.
    Consolidation agreement means a written agreement under the 
provisions of 25 U.S.C. 2206(e) or 2206(j)(9), by which a decedent's 
heirs and devisees consolidate interests in trust or restricted land, 
entered during the probate process, approved by the judge, and 
implemented by the probate order.
    Creditor means any individual or entity that has a claim for 
payment from a decedent's estate.
    Day means a calendar day, unless otherwise stated.

[[Page 45206]]

    Decedent means a person who is deceased.
    Decision or order (or decision and order) means a written document 
issued by a judge making determinations as to heirs, wills, devisees, 
and the claims of creditors, and ordering distribution of trust or 
restricted land or trust personalty. Decision or order also means the 
decision issued by an attorney decision maker in a summary probate 
proceeding.
    Department or DOI means the Department of the Interior.
    Devise means a gift of property by will. Also, to give a gift of 
property by will.
    Devisee means a person or entity that receives property under a 
will.
    Eligible heir means for the purposes of the Act, 25 U.S.C. 2206, 
any of a decedent's children, grandchildren, great grandchildren, full 
siblings, half siblings by blood, and parents who are:
    (1) Indian;
    (2) Lineal descendents within two degrees of consanguinity of an 
Indian; or
    (3) Owners of a trust or restricted interest in a parcel of land 
for purposes of inheriting, by descent, renunciation, or consolidation 
agreement, another trust or restricted interest in such parcel from the 
decedent.
    Estate means the trust or restricted land and trust personalty 
owned by the decedent at the time of death.
    Form OHA-7 means a form (or an automated database equivalent) used 
by BIA to record data for heirship and family history, including but 
not limited to information on any wills, trust and restricted land, 
marriages, births, deaths, adoptions, and names and addresses of all 
interested parties.
    Formal probate proceeding means a trial-type proceeding, conducted 
by a judge, in which evidence is obtained through the testimony of 
witnesses and the receipt of relevant documents.
    Heir means any individual or entity eligible to receive trust or 
restricted land or trust personalty from a decedent in an intestate 
proceeding.
    I means, in question headings, an heir, a devisee, an owner of 
trust or restricted land or trust personalty, or a creditor.
    Individual Indian Money (IIM) account means funds held in trust in 
an individual Indian money (IIM) account by OST or by a tribe 
performing this function under a contract or compact. These funds also 
are defined as the ``trust personalty.''
    Indian means, for the purposes of the Act, 25 U.S.C. 2206:
    (1) Any person who is a member of a federally recognized Indian 
tribe, is eligible to become a member of any Indian tribe, or is an 
owner (as of October 27, 2004) of a trust or restricted interest in 
land;
    (2) Any person meeting the definition of Indian under 25 U.S.C. 
479; and
    (3) With respect to the inheritance and ownership of trust or 
restricted land in the State of California under 25 U.S.C. 2206, any 
person described in paragraph (1) or (2) of this definition or any 
person who owns a trust or restricted interest in a parcel of such land 
in that State.
    Indian probate judge (IPJ) means a licensed attorney, employed by 
OHA, other than an ALJ, to whom the Secretary has delegated the 
authority to hear and decide Indian probate cases under 5 U.S.C. 
556(b).
    Interested party means:
    (1) Any potential or actual heir;
    (2) Any devisee under a will;
    (3) Any person or entity asserting a claim against a decedent's 
estate;
    (4) Any tribe having a statutory option to purchase the trust or 
restricted property interest of a decedent; or
    (5) A co-owner exercising a purchase option.
    Intestate means the decedent died without a valid will.
    Judge means an administrative law judge (ALJ) or Indian probate 
judge (IPJ).
    LTRO means the Land Titles and Records Office within BIA.
    OHA means the Office of Hearings and Appeals within the Department 
of the Interior.
    OST means the Office of the Special Trustee for American Indians 
within the Department of the Interior.
    Probate means the legal process by which applicable tribal, 
Federal, or state law that affects the distribution of a decedent's 
estate is applied to:
    (1) Determine the heirs;
    (2) Determine the validity of wills and determine devisees;
    (3) Determine whether claims against the estate will be paid from 
trust funds; and
    (4) Order the transfer of any trust or restricted land or trust 
personalty to the heirs, devisees, or other persons or entities 
entitled by law to receive the funds or land.
    Probate staff means a DOI or tribal employee who is trained in 
probate matters and who is responsible for preparing the probate file.
    Purchase option at probate refers to the process by which eligible 
purchasers can purchase a decedent's interest during the probate 
proceeding.
    Restricted property means real property, the title to which is held 
by an Indian but which cannot be alienated or encumbered without the 
Secretary's consent. For the purpose of probate proceedings, restricted 
property is treated as if it were trust property. Except as the law may 
provide otherwise, the term ``restricted property'' as used in this 
subpart does not include the restricted lands of the Five Civilized 
Tribes of Oklahoma or the Osage Nation.
    Secretary means the Secretary of the Interior or an authorized 
representative. The authorized representative of the Secretary for the 
performance of probate functions is BIA. The authorized representative 
for adjudication of probate is OHA.
    Summary probate proceeding means the consideration of a probate 
file without a hearing and on the basis of the probate file received 
from BIA. A summary probate proceeding may be conducted if the estate 
involves only trust personalty and does not exceed the amount of $5,000 
on the date of the decedent's death.
    Superintendent means a BIA Superintendent or other BIA official, 
including a field representative or one holding equivalent authority.
    Testate means the decedent executed a valid will.
    Trust personalty means all funds and securities of any kind which 
are held in trust in an IIM account or otherwise supervised by the 
Secretary.
    Trust property means real or personal property, or an interest 
therein, for which the United States holds the title to the property in 
trust for the benefit of an individual Indian or tribe.
    We or us means the Secretary, an authorized representative of the 
Secretary, or the authorized employee or representative of a tribe 
performing probate functions under a contract or compact approved by 
the Secretary. The Secretary may change the designation of the 
authorized representative at any time.
    Will means a written document executed with the required 
formalities and intended to pass the testator's property upon death.
    You means, in regulatory text, an heir or devisee or owner of trust 
or restricted property or trust personalty, unless a specific section 
defines ``you'' to have another meaning.


Sec.  15.3  Who can make a will disposing of trust or restricted land 
or trust personalty?

    Any person 18 years of age or over and of testamentary capacity, 
who has any right, title, or interest in trust or restricted land or 
trust personalty, may dispose of trust or restricted land or trust 
personalty by will.

[[Page 45207]]

Sec.  15.4  What are the requirements for my will?

    You must date and execute your will in writing and have it attested 
by two disinterested adult witnesses.


Sec.  15.5  Can I revoke my will?

    Yes. You may revoke your will at any time. You may revoke your will 
by any means authorized by tribal or Federal law, including executing a 
subsequent will or other writing with the same formalities as are 
required for execution of a will.


Sec.  15.6  Can my will be deemed revoked by operation of the law of 
any state?

    No will that is subject to the regulations of this subpart will be 
deemed to be revoked by operation of the law of any State.


Sec.  15.7  What is a self-proved will?

    A self-proved will employs an affidavit, attached to the will, 
signed by the testator and the witnesses before an officer authorized 
to administer oaths, certifying that they complied with the 
requirements of execution of the will. Using an affidavit executed at 
the same time as the will avoids the need for the testimony of the will 
witnesses at probate to prove the execution of the will.


Sec.  15.8  Can I make my will, codicil, or revocation self-proved?

    Yes. A will, codicil, or revocation may be made self-proved as 
provided in this section.
    (a) A will, codicil, or revocation executed as provided in Sec.  
15.4 may be made self-proved by the testator and attesting witnesses at 
the time of its execution.
    (b) The testator and the attesting witnesses must make these 
affidavits before an officer authorized to administer oaths, and the 
affidavits must be attached to the will.


Sec.  15.9  Do affidavits for my self-proved will, codicil, or 
revocation have to be in a certain format?

    Yes, the affidavits of the testator and attesting witnesses must be 
in substantially the following form and content.
    (a) Format for testator's affidavit:

Tribe of -------- or
State of --------
County of -------- ss.
I, --------, being first duly sworn, on oath, depose and say: That I 
am an -------- (enrolled or unenrolled) member of the -------- Tribe 
of Indians in the State of --------; that on the -- day of -- , 20--
, that I requested -------- and -------- to act as witnesses 
thereto; that I declared to said witnesses that said instrument was 
my last will and testament; that I signed said will in the presence 
of both witnesses; that they signed the same as witnesses in my 
presence and in the presence of each other; that said will was read 
and explained to me (or read by me), after being prepared and before 
I signed it, and it clearly and accurately expresses my wishes; and 
that I willingly made and executed said will as my free and 
voluntary act and deed for the purposes therein expressed.

-----------------------------------------------------------------------
Testator

    (b) Format for attesting witnesses' affidavit:

We, -------- and --------, each being first duly sworn, on oath, 
depose and state: That on the -- day of --, 20--, --, a member of 
the -------- Tribe of Indians of the State of --------, published 
and declared the attached instrument to be his/her last will and 
testament, signed the same in the presence of both of us, and 
requested both of us to sign the same as witnesses; that we, in 
compliance with his/her request, signed the same as witnesses in 
his/her presence and in the presence of each other; that said 
testator was not acting under duress, menace, fraud, or undue 
influence of any person, so far as we could ascertain, and in our 
opinion was mentally capable of disposing of all his/her estate by 
will.

-----------------------------------------------------------------------
Witness

-----------------------------------------------------------------------
Witness

Subscribed and sworn to before me this--day of --, 20--, by -------- 
testator, and by -------- and --------, attesting witnesses.

-----------------------------------------------------------------------

-----------------------------------------------------------------------

(Title)


Sec.  15.10  Will the Secretary probate all the land or assets in an 
estate?

    (a) We will probate only the trust or restricted land or trust 
personalty in an estate.
    (b) We will not probate the following property:
    (1) Real or personal property other than trust or restricted land 
or trust personalty in an estate of a decedent;
    (2) Restricted land derived from allotments made to members of the 
Five Civilized Tribes (Cherokee, Choctaw, Chickasaw, Creek and 
Seminole) in Oklahoma; and
    (3) Restricted interests derived from allotments made to Osage 
Indians in Oklahoma (Osage Nation) and Osage headright interests owned 
by Osage decedents.
    (c) We will probate that part of the estate of a deceased member of 
the Five Civilized Tribes or Osage Nation who owns a trust interest in 
land or a restricted interest in land derived from an individual Indian 
other than the Five Civilized Tribes or Osage Nation.


Sec.  15.11  How does the probate process work?

    The basic steps of the probate process are:
    (a) We find out about a person's death (see subpart B of this part 
for details);
    (b) We prepare a probate file that includes documents sent to the 
agency (see subpart C of this part for details);
    (c) We refer the completed probate file to OHA for assignment to a 
judge or ADM (see subpart D of this part for details); and
    (d) The judge or ADM decides how to distribute any trust or 
restricted land and/or trust personalty, and we make the distribution 
(see subpart D of this part for details).


Sec.  15.12  What happens if assets in a trust estate may be diminished 
or destroyed while the probate is pending?

    (a) This section applies if an interested party or BIA:
    (1) Learns of the death of a person entitled to trust or restricted 
property; and
    (2) Determines that an emergency exists and the assets in the trust 
estate may be significantly diminished or destroyed before the final 
decision and order of a judge in a probate case.
    (b) The interested party or BIA may:
    (1) Request the immediate assignment of a judge or ADM for the 
probate case;
    (2) Transmit or request the transfer of a probate file to OHA 
containing sufficient information on potential interested parties and 
documentation concerning the emergency alleged for a judge to consider 
emergency relief in order to preserve estate assets; and
    (3) Request an expedited hearing or consideration of ex parte 
relief to prevent impending or further loss or destruction of trust 
assets.
    (c) The Superintendent or other authorized representative of BIA is 
granted the standing necessary to request relief under this section.

Subpart B--Starting the Probate Process


Sec.  15.101  When should I notify BIA of a death?

    There is no deadline for notifying us of a death.
    (a) Notify us as provided in Sec.  15.103 to assure timely 
distribution of the estate.
    (b) If we find out about the death of a person and if the decedent 
meets the criteria in Sec.  15.3, we will initiate the process to 
collect the necessary documentation.


Sec.  15.102  Who may notify BIA of a death?

    Anyone may notify us of a death.

[[Page 45208]]

Sec.  15.103  How do I begin the probate process?

    As soon as possible, contact any of the following to inform us of 
the decedent's death:
    (a) The BIA agency or regional office nearest to where the decedent 
was enrolled;
    (b) Any BIA agency or regional office;
    (c) The tribe where the decedent was enrolled; or
    (d) The Trust Beneficiary Call Center at (888) 678-6836 ext. 0.


Sec.  15.104  Does BIA need a death certificate to prepare a probate 
file?

    (a) We require a certified copy of the death certificate if a 
certified copy exists. If necessary, we will make a copy from your 
certified copy for our use and return your copy.
    (b) If a certified copy of the death certificate does not exist, 
you must provide as much information as you can concerning the 
deceased, such as:
    (1) The State, city, reservation, location, date, and cause of 
death;
    (2) The last known address of the deceased; names and addresses of 
others who may have information about the deceased; and any other 
information available concerning the deceased, such as newspaper 
articles, obituary, or death notices or a church or court record.
    (c) If no certified copy of a death certificate exists, we require 
an affidavit stating as much of the information set forth in paragraph 
(b) of this section as is available, as well as any other information 
available concerning the decedent.


Sec.  15.105  What other documents does BIA need to prepare a probate 
file?

    In addition to the certified copy of a death certificate or other 
reliable evidence of death listed in Sec.  15.104, we need the 
following information and documents:
    (a) Originals or copies of all wills, codicils, and revocations, or 
other evidence that a will may exist;
    (b) Social Security number of the decedent;
    (c) The place of enrollment and the tribal enrollment or census 
number of the decedent and potential heirs or devisees;
    (d) Current names and addresses of the decedent's potential heirs 
and devisees;
    (e) Any sworn statements regarding the decedent's family, including 
any statements of paternity or maternity;
    (f) Any statements renouncing an interest in the estate including 
identification of the person or entity in whose favor the interest is 
renounced, if any;
    (g) A list of known claims by creditors of the decedent against the 
estate and their addresses, including copies of any court judgments; 
and
    (h) Documents, certified if possible, from the appropriate 
authorities concerning the public record of the decedent, including but 
not limited to, any:
    (1) Marriage licenses of the decedent,
    (2) Divorce decrees of the decedent,
    (3) Adoption and guardianship records concerning the decedent or 
the decedent's potential heirs or devisees;
    (4) Use of other names by the decedent, including copies of name 
changes by court order; and
    (5) Order requiring payment of child support or spousal support.


Sec.  15.106  Can a probate case be opened when an owner of an interest 
has been absent?

    (a) A probate case may be opened when information is provided to us 
that an owner of an interest in trust or restricted land or trust 
personalty has been absent without explanation for a period of at least 
six years.
    (b) When we receive that information, we will begin an 
investigation into the unexplained absence, and will attempt to locate 
the absent person. We may:
    (1) Search available electronic databases;
    (2) Inquire into other published information sources such as 
telephone directories and other available directories;
    (3) Examine BIA land title and lease records;
    (4) Examine the IIM account ledger for disbursements from the 
account; and
    (5) Engage the services of an independent firm to conduct a search 
for the absent owner.
    (c) When we have completed our investigation, if we are unable to 
locate the absent person, we will open a probate case and prepare a 
file that will include all the documentation developed in the search.
    (d) We may file a claim in the probate case to recover the 
reasonable costs expended to contract with an independent firm to 
conduct the search.


Sec.  15.107  Who prepares a probate file?

    The probate staff at the agency or tribe where the decedent is an 
enrolled member will prepare the probate file in consultation with the 
potential heirs or devisees who can be located, and with other people 
with information about the decedent or the estate.


Sec.  15.108  If the decedent was not an enrolled member of a tribe or 
was a member of more than one tribe, who prepares the probate file?

    Unless otherwise provided by Federal law, the agency that has 
jurisdiction over the tribe with the strongest association with the 
decedent will serve as the home agency and will prepare the probate 
file if the decedent either:
    (a) Was not an enrolled member of a tribe but owns interests in 
trust or restricted land or trust personalty; or
    (b) Was a member of more than one tribe.

Subpart C--Obtaining Emergency Assistance and Filing Claims


Sec.  15.201  Can I get funds from the decedent's IIM account for 
funeral services?

    (a) You may ask us for up to $1,000 from the decedent's IIM account 
in the following situations:
    (1) You are responsible for making the funeral arrangements on 
behalf of the family of a decedent who had an IIM account;
    (2) You have an immediate need to pay for funeral arrangements 
before burial; and
    (3) The decedent's IIM account contains more than $2,500 on the 
date of death.
    (b) You must apply for assistance under paragraph (a) of this 
section and submit to us an original itemized estimate of the cost of 
the service to be rendered and the identification of the service 
provider.
    (c) We may approve reasonable costs up to $1,000 that are necessary 
for the burial services, taking into consideration:
    (1) The total amount in the account;
    (2) The number of potential heirs or beneficiaries of whom BIA is 
aware;
    (3) The amount of any claims against the account of which BIA is 
aware;
    (4) The availability of non-trust funds; and
    (5) Any other relevant factor.
    (d) We will make payments directly to the providers of the 
services.


Sec.  15.202  If the decedent owed me money, how do I file a claim 
against the estate?

    If a decedent owed you money, you can make a claim against the 
estate of the decedent before the probate file is transferred to OHA. 
To do this, you may submit to us an affidavit under oath of the debt 
alleged and an itemized statement of the debt, including copies of any 
documents (such as signed notes, mortgages, account records, billing 
records, and journal entries) necessary to prove the indebtedness. You 
may also file your claim as a creditor with OHA

[[Page 45209]]

after the probate file has been transferred and pending adjudication 
has not been completed if you comply with 43 CFR 30.140-30.148.
    (a) The itemized statement must show the amount of the original 
debt and the remaining balance on the date of the decedent's death.
    (b) The affidavit must state whether you have filed a claim or 
sought reimbursement against the decedent's non-trust assets and 
whether you have filed a claim for the same debt in any other judicial 
or quasi-judicial proceeding.
    (c) Secured creditors must first exhaust the security before 
submitting a claim against trust personalty for any deficiency. Submit 
a certified copy of a judgment of a court of competent jurisdiction 
determining the deficiency.
    (d) File your claim before the conclusion of the first hearing or, 
for cases designated as summary probate proceedings, as allowed under 
43 CFR 30.202. Claims not filed by then will be barred forever.

Subpart D--Preparing the Probate file


Sec.  15.301  What will BIA do with the documents that I provide?

    After we receive notice of the death of a person owning trust or 
restricted land or trust personalty, we will examine the documents 
provided under Sec. Sec.  15.104 and 15.105, and other documents and 
information you may provide to prepare a complete probate file. We will 
consult with you and any other sources to obtain additional information 
to complete the probate file. Then we will transfer the probate file to 
OHA.


Sec.  15.302  What items must BIA include in the probate file?

    BIA must query available sources of information to locate and 
include the following items in the probate file:
    (a) The evidence of death of the decedent as provided by Sec.  
15.104;
    (b) A completed Form OHA-7, ``Data for Heirship Findings and Family 
History,'' certified by BIA, with the enrollment or other identifying 
number shown for each potential heir or devisee, if such number has 
been assigned;
    (c) Information provided by potential heirs, devisees or the tribes 
on:
    (1) Whether the heirs and devisees meet the definition of 
``Indian'' for probate purposes, including enrollment or eligibility 
for enrollment in a tribe;
    (2) Whether the potential heirs or devisees are within two degrees 
of consanguinity of an ``Indian''; and
    (3) If an individual only qualifies as an Indian because of 
ownership of a trust or restricted interest in land, the date on which 
the individual became the owner of the trust or restricted interest;
    (d) A certified inventory of trust or restricted land, including:
    (1) Accurate and adequate descriptions of all land and 
appurtenances;
    (2) All encumbrances on the land, including but not limited to 
leases, mortgages, and rights of way;
    (3) Identification of any interests that represent less than 5% of 
the undivided interest in a parcel; and
    (4) Identification of all income generating activity, such as 
leases or rights of way and any assignments of such income;
    (e) A statement showing the balance of the decedent's IIM account 
at the date of death;
    (f) A statement showing all disbursements from the decedent's IIM 
account after the date of death;
    (g) Originals or copies of all wills, codicils, and revocations;
    (h) A copy of any statement or document concerning any wills, 
codicils or revocations we have returned to the testator;
    (i) Any statement renouncing an interest in the estate that has 
been submitted to us, and the information necessary to identify any 
person receiving a renounced interest;
    (j) Claims of creditors, including documentation required by Sec.  
15.202;
    (k) Documentation of any payments made on claims filed under the 
provisions of Sec.  15.201;
    (l) All the documents acquired under Sec.  15.105;
    (m) The record of each tribal or individual request to purchase a 
trust or restricted land interest at probate;
    (n) The record of any individual request for a consolidation 
agreement, including a description, such as an Individual/Tribal 
Interest Report, of any lands not part of the decedent's estate that 
are proposed for inclusion in the consolidation agreement; and
    (o) An affidavit by the probate staff, if applicable, certifying 
that the Department has complied with 25 U.S.C. 2201 et seq in 
attempting to locate missing potential heirs and devisees and 
identifying the steps that were taken.


Sec.  15.303  When is a probate file complete?

    A probate file is complete for transfer to OHA when a BIA approving 
official includes a certification that:
    (a) States that the probate file includes all information listed in 
Sec.  15.302 that is available; and
    (b) Lists all sources of information BIA queried in an attempt to 
locate information listed in Sec.  15.302 that is not available.

Subpart E--Probate Processing and Distributions


Sec.  15.401  What happens after BIA prepares the probate file?

    After we assemble all the documents required by Sec.  15.302, our 
probate staff will:
    (a) Refer the case to OHA for assignment to a judge or ADM; and
    (b) Forward a list of fractional interests that represent less than 
5 percent of the entire undivided ownership of each parcel of land in 
the decedent's estate to the Indian Land Consolidation Office and to 
the tribes with jurisdiction over those interests.


Sec.  15.402  What happens after the probate file is referred to OHA?

    (a) When OHA receives the probate file from BIA, it will assign the 
case to a judge or ADM. The judge or ADM will conduct the probate 
proceeding and issue a written decision and an order, in accordance 
with 43 CFR part 4, subpart D.
    (b) If BIA receives any claims from creditors after the probate 
file is transmitted to OHA, but before the order is issued, BIA must 
promptly transmit those claims to OHA.


Sec.  15.403  What happens after the probate decision is made?

    Once the probate decision is made:
    (a) You have 30 days from the decision or order mailing date to 
file a written request for a de novo review, a request for rehearing or 
an appeal, in accordance with 43 CFR part 30;
    (b) When you file a timely request for de novo review, a request 
for rehearing, or an appeal, we will not pay claims, transfer title to 
land, or distribute trust personalty until the request or appeal is 
resolved; and
    (c) If no interested party timely files a request or appeal, we 
will wait at least 10 days after the 30 day period stated in paragraph 
(a) of this section before paying claims, transferring title to land, 
or distributing trust personalty, then:
    (1) The LTRO will change its land title records for the trust and 
restricted land in accordance with the final decision or order; and
    (2) We will pay claims and distribute the IIM account in accordance 
with the final decision or order.

Subpart F--Information and Records


Sec.  15.501  How can I find out the status of a probate?

    You may contact any BIA agency or regional office, an OST fiduciary 
trust

[[Page 45210]]

officer or the Trust Beneficiary Call Center at (888) 678-6836 ext. 0, 
to get information about the status of an Indian probate.


Sec.  15.502  Who owns the records associated with this part?

    (a) The United States owns the records associated with this part if 
they:
    (1) Are made by or on behalf of the United States;
    (2) Are made or received by a tribe or tribal organization in the 
conduct of a federal trust function under this part, including the 
operation of a trust program under Public Law 93-638 as amended; and
    (3) Are evidence of the organization, functions, policies, 
decisions, procedures, operations, or other activities undertaken in 
the performance of a federal trust function under this part.
    (b) The tribe owns the records associated with this part if they:
    (1) Are not covered by paragraph (a) of this section; and
    (2) Are made or received by a tribe or tribal organization in the 
conduct of business with the Department of the Interior under this 
part.


Sec.  15.503  How must records associated with this part be preserved?

    (a) Any organization that has records identified in Sec.  
15.502(a), including tribes and tribal organizations, must preserve the 
records in accordance with approved Departmental records retention 
procedures under the Federal Records Act, 44 U.S.C. chapters 29, 31, 
and 33; and
    (b) A tribe or tribal organization must preserve the records 
identified in Sec.  15.502(b) for the period authorized by the 
Archivist of the United States for similar Department of the Interior 
records under 44 U.S.C. chapter 33.


Sec.  15.504  Who may inspect these records?

    The records and records management practices and safeguards 
required under the Federal Records Act are subject to inspection by BIA 
and the Archivist of the United States.


Sec.  15.505  What information must tribes provide BIA to complete the 
probate file?

    The tribes must provide any information that we require or request 
to complete the probate file. This information may include enrollment 
and family history data or property title documents that pertain to any 
pending probate matter.


Sec.  15.506  How does the Paperwork Reduction Act affect this part?

    The collections of information contained in Sec. Sec.  15.4, 
15.104, 15.105, 15.201, 15.202, 15.403, 15.505 have been approved by 
the Office of Management and Budget under 44 U.S.C. 3501 et seq. and 
assigned OMB Control Number 1076-xxxx. Response is required to obtain a 
benefit. A Federal agency may not conduct or sponsor, and you are not 
required to respond to a collection of information unless the form or 
regulation requesting the information has a currently valid OMB Control 
Number.
    2. Add part 18 to subchapter C to read as follows:

PART 18--TRIBAL PROBATE CODES

Sec.
18.1 May a tribe adopt its own probate code?
18.2 When does a code require our approval?
18.3 What will you consider in the approval process?
18.4 How does a tribe request approval for a probate code?
18.5 When will you approve or disapprove a probate code or 
amendment?
18.6 What happens if the probate code or amendment is approved?
18.7 How is a tribe notified of a disapproval?
18.8 When will a tribal probate code become effective?
18.9 What will happen if a tribe repeals its probate code?
18.10 How does the Paperwork Reduction Act affect this part?

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 372-74, 410; 44 U.S.C. 
3101 et seq; 25 CFR part 15; 43 CFR part 4.


Sec.  18.1  May a tribe adopt its own probate code?

    (a) A tribe may adopt a probate code to govern descent and 
distribution of trust and restricted lands located within the tribe's 
reservation or otherwise subject to the tribe's jurisdiction. The code 
may include:
    (1) Rules of intestate succession; and
    (2) Other provisions consistent with Federal law that promote the 
policies in Sec.  18.3.
    (b) A tribe may adopt a single heir rule for intestate succession 
specifying a recipient other than the one provided by 25 U.S.C. 
2206(a)(2)(D).


Sec.  18.2  When does a code require our approval?

    Only those tribal probate codes that govern the descent and 
distribution of trust and restricted lands require our approval.


Sec.  18.3  What will you consider in the approval process?

    We will consider the following in determining whether to approve a 
tribal probate code:
    (a) The code must promote the policies of the Indian Land 
Consolidation Act (ILCA) Amendments of 2000 which are to:
    (1) Prevent further fractionation;
    (2) Consolidate fractional interests into useable parcels;
    (3) Consolidate fractional interests to enhance tribal sovereignty;
    (4) Promote tribal self-sufficiency and self-determination; and
    (5) Reverse the effects of the allotment policy on Indian tribes;
    (b) The tribal probate code must allow:
    (1) An Indian lineal descendant of the original allottee to 
inherit; and
    (2) An Indian who is not a member of the Indian tribe with 
jurisdiction over the interest in land to inherit; and
    (c) A tribe may limit the individuals in paragraphs (b)(1) and (2) 
of this section if the code:
    (1) Allows those individuals to renounce their interests to 
eligible devisees in accordance with the tribal code;
    (2) Allows a devisee spouse or lineal descendant of the testator or 
of the original allottee to reserve a life estate without regard to 
waste; and
    (3) Allows for the payment of fair market value as determined by us 
on the date of the decedent's death.


Sec.  18.4  How does a tribe request approval for a probate code?

    (a) To begin the approval process for either a tribal probate code 
or amendment to the code, the tribe must submit to the local Bureau 
Official as defined in 25 CFR 82.1(h):
    (1) Its probate code or an amendment to an existing code; and
    (2) A duly executed tribal resolution adopting the code or the 
amendment.
    (b) The local Bureau Official will make sure that a complete copy 
of the code and the resolution is submitted to the Assistant 
Secretary--Indian Affairs for approval.


Sec.  18.5  When will you approve or disapprove a probate code or 
amendment?

    (a) We have 180 days from submission of a complete package to the 
local Bureau Official to approve or disapprove a tribal probate code.
    (b) We have 60 days from submission of an amendment of the tribal 
probate code to approve or disapprove the amendment.
    (c) If we do not meet the deadlines in paragraphs (a) or (b) of 
this section, the tribal probate code or the amendment to the code will 
be deemed approved, but only to the extent that it:
    (1) Is consistent with Federal law; and
    (2) Promotes the policies of the ILCA Amendments of 2000 as listed 
in Sec.  18.3.

[[Page 45211]]

Sec.  18.6  What happens if the probate code or amendment is approved?

    Our approval applies only to those sections of the tribal probate 
code that govern the descent and distribution of trust or restricted 
land. We will:
    (1) Notify the tribe of the approval and forward a copy of the code 
or amendment to the Office of Hearings and Appeals; and
    (2) Publish a notice of the date of the approval in the Federal 
Register.


Sec.  18.7  How is a tribe notified of a disapproval?

    If we disapprove a tribal probate code or amendment, we must 
provide the tribe with a written notification of the disapproval that 
includes:
    (a) An explanation of the reasons for the disapproval; and
    (b) Notification that the tribe may appeal the disapproval directly 
to the Interior Board of Indian Appeals under 25 CFR part 2.


Sec.  18.8  When will a tribal probate code become effective?

    (a) A tribal probate code may not become effective sooner than 180 
days after the date of approval.
    (b) The tribal probate code or amendment will apply only to the 
estate of a decedent who dies on or after the effective date of the 
tribal probate code or amendment.


Sec.  18.9  What will happen if a tribe repeals its probate code?

    (a) If a tribe repeals its tribal probate code, the repeal:
    (1) Will not become effective sooner than 180 days from the date we 
receive notification from the tribe of its decision to repeal the code; 
and
    (2) Will apply only to the estate of a decedent who dies on or 
after the effective date of the repeal.
    (b) We will:
    (1) Forward a copy of the repeal to the Office of Hearings and 
Appeals; and
    (2) Publish a notice of the date of repeal in the Federal Register.


Sec.  18.10  How does the Paperwork Reduction Act affect this part?

    The collection of information contained in Sec.  18.4 has been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned OMB Control Number 1076-xxxx. Response is required to 
obtain a benefit. A Federal agency may not conduct or sponsor, and you 
are not required to respond to a collection of information unless the 
form or regulation requesting the information has a currently valid OMB 
Control Number.
    3. Revise part 150 to read as follows:

PART 150--INDIAN LAND RECORD OF TITLE

Subpart A--Purpose, Definitions, and Public Information

Sec.
150.1 What is the purpose of this part?
150.2 What terms do I need to know?
150.3 When can I see land and title information from the Indian Land 
Record of Title?
150.4 Do I have to be an Indian or a tribe to obtain products or 
services from the Land Titles and Records Office?
Subpart B--The Indian Land Record of Title Designation as the Official 
Record of Indian Land
150.101 Must all title instruments affecting Indian land be recorded 
in the Indian Land Record of Title?
150.102 Do I have to check with any other governmental office to 
find title instruments to Indian land?
Subpart C--LTRO Procedures and Requirements to Record Instruments in 
the Indian Land Record of Title
150.201 Who maintains the Indian Land Record of Title?
150.202 Where is the LTRO located?
150.203 Who submits the title instruments for recording?
150.204 What does the LTRO do with the instruments it receives?
150.205 What are the minimum requirements for recording a title 
instrument?
150.206 What if the LTRO discovers a defect or error in a document?
150.207 What if a defect or error in a final probate record cannot 
be corrected?
150.208 How do I correct an error or omission in a title instrument 
or LTRO product or service?
150.209 What instruments qualify for recording with the LTRO?
150.210 Does the LTRO maintain the original title instruments?
150.211 May I obtain a copy of the title instrument from the LTRO?
150.212 Is there any benefit to obtaining a certified copy of the 
title?
Subpart D--Services and Products of the LTRO
150.301 What services and products may I order from the LTRO?
150.302 How do I order services and products from the LTRO?
150.303 Does BIA charge fees for any of the services provided by, or 
products produced by, the LTRO?
150.304 What will the LTRO do if the instrument contains information 
that is privileged or protected?
150.305 How does the Paperwork Reduction Act affect this part?

    Authority: Act of June 30, 1834 (4 Stat. 738; 25 U.S.C. 9). Act 
of July 26, 1892 (27 Stat. 272; 25 U.S.C. 5). Reorganization Plan 
No. 3 of 1950 approved June 20, 1949 (64 Stat. 1262). (Act of April 
26, 1906 (34 Stat. 137); Act of May 27, 1908 (35 Stat. 312); Act of 
August 1, 1914 (38 Stat. 582, 598) deals specifically with land 
records of the Five Civilized Tribes. Act of February 14, 1920 (41 
Stat. 415) amended March 1, 1933 (47 Stat. 1417; 25 U.S.C. 413); 5 
U.S.C. 552a; 25 U.S.C. 14b; and 31 U.S.C. 9701.

    Cross-reference: For further regulations pertaining to proceedings 
in Indian probate, see 43 CFR part 4, subpart D, 43 CFR part 30, and 25 
CFR part 15.

Subpart A--Purpose, Definitions and Public Information


Sec.  150.1  What is the purpose of this part?

    The purpose of this part is to describe the authorities, policies, 
and procedures used for:
    (a) Recording instruments that affect title to Indian land;
    (b) Maintaining copies of title instruments;
    (c) Maintaining the Indian Land Record of Title;
    (d) Certifying title instruments of Indian land;
    (f) Examining and determining title status;
    (g) Preparing reports on the title of Indian land; and
    (h) Designating the Indian Land Record of Title as the official 
record for instruments that affect title to Indian land.


Sec.  150.2  What terms do I need to know?

    As used in this part:
    BIA means the United States Department of the Interior Bureau of 
Indian Affairs.
    Constructive notice means information or knowledge of a fact 
imputed by law to a person even if such person has no actual knowledge 
of the fact.
    Federal government means the government of the United States.
    Government offices mean the Federal, state, county, and municipal 
government.
    Indian land means land held in trust status or restricted status, 
or certain Federal government land that is under the jurisdiction of 
BIA.
    Indian Land Record of Title means the record of title instruments 
for Indian land under the Act of July 26, 1892, 27 Stat.272; 25 U.S.C. 
5.
    Instrument means a document in writing, including, but not limited 
to, a contract, deed, will, bond, judicial or administrative order, 
lease, or easement, including a map or plat.
    Interest, when used with respect to Indian land, means a present or 
future right in trust or restricted land.
    Land means real estate.
    Land Titles and Records Office (LTRO) means the office within BIA 
that

[[Page 45212]]

is responsible for maintaining the Indian Land Record of Title by 
recording, providing custody, and certifying title instruments in its 
custody, and for examining and determining the completeness and 
accuracy of the record of interests in Indian land, certifying the 
findings of examination, and reporting the status of interests in 
Indian land. The Land Titles and Records Office, as used herein, 
includes tribes which have compacted or contracted to perform some Land 
Titles and Records functions.
    Recording means the entry of the information from an instrument 
into the Indian Land Record of Title. Recording an instrument in the 
Indian Land Record of Title gives constructive notice of the 
instrument's existence.
    Secretary means the Secretary of the Interior, or an authorized 
representative.
    Title means an interest, or evidence of an interest, in Indian 
land.
    Title examination means a review and evaluation by the Land Titles 
and Records Office of the information in the Indian Record of Title for 
a particular tract of Indian land and a finding that such information 
is complete, accurate, and current.
    Title instrument means any instrument that affects an interest in 
Indian land and that the law and regulations require to be approved or 
recorded.
    Tribe means any Indian tribe, nation, band, pueblo, town, 
community, rancheria, colony, or other group of Indians, which is 
recognized by the Secretary as eligible for the special programs and 
services provided by the Bureau of Indian Affairs, and listed in the 
Federal Register under Public Law 103-454, act of Nov. 2, 1994 (108 
Stat. 4791; 25 U.S.C. 479a).
    Trust status means the United States holds title to the property in 
trust for the benefit of a tribe or individual Indian. Restricted 
status means a tribe or individual Indian holds title to the property 
in fee simple subject to Federal restrictions on alienation or 
encumbrance.
    You/I means the person reading this regulation.


Sec.  150.3  When can I see land and title information from the Indian 
Land Record of Title?

    (a) You may access, inspect and copy the information in the Indian 
Land Record of Title except where this information is subject to the 
Privacy Act, 5 U.S.C. 552a or other law or policy restricting access to 
records.
    (b) Information covered by this section includes information on the 
location of the land, historical interests, current interests, and 
related documents.
    (c) Owners of an interest in trust or restricted land within the 
same reservation, the tribe or any person that is leasing, using, or 
consolidating, or is applying to lease, use or consolidate, such trust 
or restricted land or the interest in trust or restricted lands may 
receive names and mailing addresses, information on the location of the 
parcel, and the percentage of the parcel owned by each individual, 
without regard to the Privacy Act and any exemption contained in the 
Freedom of Information Act, 5 U.S.C. 552.
    (d) You do not need to make a request under the Freedom of 
Information Act to see records covered by this section. You may submit 
a request for information to any location of the Land Titles and 
Records Office or BIA as provided in subpart D of this part.


Sec.  150.4  Do I have to be an Indian or a tribe to obtain products or 
services from the Land Titles and Records Office?

    No. Anyone may receive products and services offered by the Land 
Titles and Records Office (LTRO).

Subpart B--The Indian Land Record of Title Designation as the 
Official Record of Indian Land


Sec.  150.101  Must all title instruments affecting Indian land be 
recorded in the Indian Land Record of Title?

    The Indian Land Record of Title is the official record of title 
instruments affecting Indian land and all title instruments must be 
recorded there, except as provided by other Federal statutory 
authority. When the LTRO records a title instrument in the Indian Land 
Record of Title, the public receives constructive notice that the title 
instrument exists. Title instruments affecting Indian land within the 
jurisdiction of the Five Civilized Tribes and the Osage Nation must be 
recorded in the county courthouse serving the county within which the 
land is located.


Sec.  150.102  Do I have to check with any other governmental office to 
find title instruments to Indian land?

    No. The Indian Land Record of Title is the source of all recorded 
title instruments, except those affecting land of the Five Civilized 
Tribes and Osage Nation, which are recorded in the county courthouse 
serving the county within which the land is located.

Subpart C--LTRO Procedures and Requirements to Record Instruments 
in the Indian Land Record of Title


Sec.  150.201  Who maintains the Indian Land Record of Title?

    The LTRO is the office within BIA responsible for maintaining the 
Indian Land Record of Title. It records title instruments affecting 
Indian land, certifies copies of images of the instruments in the 
custody of the LTRO, examines the record and certifies the findings of 
examinations, and provides other services and products based upon the 
information in the record.


Sec.  150.202  Where is the LTRO located?

    The LTRO has locations throughout the United States. You may 
contact any BIA office for the current contact information.


Sec.  150.203  Who submits the title instruments for recording?

    BIA submits most of the title instruments to the LTRO. Tribes, 
other government offices, and individuals may also submit instruments 
to the LTRO.


Sec.  150.204  What does the LTRO do with the instruments it receives?

    (a) The LTRO reviews the instrument to ensure that it satisfies the 
minimum requirements for recording. If so, the LTRO:
    (1) Makes a true and correct image of the instrument;
    (2) Enters the information contained in the instrument affecting 
the status of title into the Indian Land Record of Title; and
    (3) Returns the original instrument.
    (b) If the instrument does not satisfy the minimum requirements, 
the LTRO returns the instrument with an explanation why the instrument 
was not accepted for recording.


Sec.  150.205  What are the minimum requirements for recording a title 
instrument?

    The minimum requirements for recording an instrument include:
    (a) A legal description of the Indian land;
    (b) The signatures of the parties to the instrument;
    (c) Proper acknowledgment of the signatures of the parties; and
    (d) If required, proper Federal approval, and the approval date and 
authority of the Federal official.


Sec.  150.206  What if the LTRO discovers a defect or error in a 
document?

    (a) If the LTRO discovers the error after the instrument is 
recorded, the LTRO will notify the submitting person

[[Page 45213]]

of the error and make a notation in the Indian Land Record of Title 
that an error exists.
    (1) Once the interested parties correct the error and the 
submitting person returns an instrument evidencing the correction to 
the LTRO, the LTRO will record the instrument in the Indian Land Record 
of Title.
    (2) In any subsequent title examination, the LTRO will rely upon 
the corrected instrument to determine the title status of the Indian 
land.
    (b) If the LTRO discovers a defect or error in a final probate 
record after it has been recorded, the LTRO will issue administrative 
corrections to correct clerical probate errors, or to add omitted 
property or interest as set forth in 43 CFR 30.126. Other defects or 
errors will be addressed through the probate process as provided in 43 
CFR part 30.


Sec.  150.207  What if a defect or error in a final probate record 
cannot be corrected?

    If a defect or error in a final probate record cannot be corrected, 
the LTRO will notify the appropriate deciding official, as provided in 
43 CFR 30.126 and 30.127, and make a notation in the Indian Land Record 
of Title that a possible error exists.
    (a) Once the deciding official corrects the error and submits an 
instrument evidencing the correction to the LTRO, the LTRO will record 
the instrument in the Indian Land Record of Title.
    (b) In any subsequent title examination, the LTRO will rely upon 
the corrected instrument to determine the title status of the Indian 
land.


Sec.  150.208  How do I correct an error or omission in a title 
instrument or LTRO product or service?

    (a) To correct an error or omission, you may submit a written 
description of the error or omission with any supporting documentation 
to the approving official or to the LTRO.
    (b) After receiving the description of the error, the LTRO will 
conduct an investigation. If the LTRO determines that there is an error 
or omission in the product or service, it will correct the product or 
service.
    (1) If there is an error or omission in the information in the 
Indian Land Record of Title, it will correct the error or omission 
based upon the image or original copy of the title instrument from 
which it obtained the information.
    (2) If there is an error or omission in the title instrument, it 
will follow the procedures set forth in Sec. Sec.  150.206 through 
150.208.


Sec.  150.209  What instruments qualify for recording with the LTRO?

    Only title instruments qualify for recording in the Indian Land 
Record of Title.


Sec.  150.210  Does the LTRO maintain the original title instruments?

    No. The LTRO returns the original instrument to the submitter.


Sec.  150.211  May I obtain a copy of the title instrument from the 
LTRO?

    Yes. If the Land Titles and Records Office has recorded the 
information from the title instrument in the Indian Land Record of 
Title and has made a copy of the title instrument, you may obtain a 
copy of the title instrument, subject to the Freedom of Information Act 
and the Privacy Act considerations as described in Sec.  150.3.


Sec.  150.212  Is there any benefit to obtaining a certified copy of 
the title?

    Yes. If the LTRO certifies a copy of the title instrument, you may 
use the certified copy in court or elsewhere, the same as the original 
instrument.

Subpart D--Services and Products of the LTRO


Sec.  150.301  What services and products may I order from the LTRO?

    You may obtain a list of services and products provided by the LTRO 
from the LTRO or BIA. Services include:
    (a) Recording title instruments;
    (b) Providing certified and uncertified copies of images of title 
instruments recorded in the Indian Land Record of Title; and
    (c) Producing reports.


Sec.  150.302  How do I order services and products from the LTRO?

    (a) You may submit your written request for services and products 
to any location of the LTRO or BIA.
    (b) You must include either a legal description of the land, the 
identification number of the tract, or the identification number of an 
owner of an interest in the tract.
    (c) You may submit other information that the LTRO may use to 
identify an owner of an interest in the tract of land, including but 
not limited to: name and tribal affiliation of an owner, the recording 
number of the instrument, or an allotment number.


Sec.  150.303  Does BIA charge fees for any of the services provided 
by, or products produced by, the LTRO?

    (a) BIA charges fees for certain services and products provided by 
the LTRO. All persons who receive services and products from the LTRO 
will be assessed a fee, except as provided in paragraph (b) of this 
section. You may pay the fee by certified check or money order.
    (1) A copy of the fee schedule is available from BIA.
    (2) Contact the LTRO for an estimate of the amount of the fee for a 
service or product.
    (3) You must pay the entire fee, or minimum fee if the fee is an 
hourly rate, when you request the service or the product from the LTRO. 
When the LTRO delivers the service or the product to you, you must pay 
any remaining amount according to the hourly rate.
    (b) The LTRO may grant an exception under the following 
circumstances:
    (1) If you are an individual Indian and are recording a transaction 
that reduces the number of owners of undivided interests in a tract of 
Indian land;
    (2) If you are an individual Indian and are recording an instrument 
to transfer your undivided interest in Indian land to a tribe;
    (3) If you are a tribe and recording a transaction that will 
consolidate the ownership interests of a tract of Indian land; or
    (4) You are an agency or office within the Department of the 
Interior or the Department of Justice.
    (c) The LTRO will charge you a minimum fee even if the LTRO is 
unable to provide the service or the product, unless the LTRO grants an 
exception under paragraph (b) of this section.
    (d) The LTRO will refund your fee for any information that cannot 
be delivered to you because of the Privacy Act (5 U.S.C. 552a) or other 
law or policy restricting access to the records.


Sec.  150.304  What will the LTRO do if the instrument contains 
information that is privileged or protected?

    If information is protected under the Privacy Act, or cannot be 
provided to you because of 5 U.S.C. 552a or another law or policy 
restricting access, the LTRO will:
    (a) Redact the information; and
    (b) Provide you with the remaining information or an altered copy 
of the image of the instrument.


Sec.  150.305  How does the Paperwork Reduction Act affect this part?

    The collections of information contained in Sec. Sec.  150.208, 
150.302(b), and 150.302(c), have been approved by the Office of 
Management and Budget under 44 U.S.C. 3501 et seq. and assigned OMB 
Control Number 1076-xxxx. Response is required to obtain a benefit. A 
Federal agency may not conduct or sponsor, and you are not required to

[[Page 45214]]

respond to, a collection of information unless the form or regulation 
requesting the information has a currently valid OMB Control Number.

PART 152--CONVEYANCES OF TRUST OR RESTRICTED INDIAN LAND; REMOVAL 
OF TRUST OR RESTRICTED STATUS

    4. The authority citation for part 152 continues to read as 
follows:

    Authority: 25 U.S.C. 2201-2204, 2212-2216, Indian Land 
Consolidation Act, 97 Pub. L. 459, 96 Stat. 2515 (Jan. 12, 1983), as 
amended; American Indian Probate Reform Act (AIPRA) of 2004, 108 
P.L. 374, 118 Stat. 1773 (Oct. 24, 2004); R.S. 161; 5 U.S.C. 301. 
Interpret or apply sec. 7, 32 Stat. 275, 34 Stat. 1018, sec. 1, 35 
Stat. 444, sec. 1 and 2, 36 Stat. 855, as amended, 856, as amended, 
sec. 17, 39 Stat. 127, 40 Stat. 579, 62 Stat. 236, sec. 2, 40 Stat. 
606, 68 Stat. 358, 69 Stat. 666: 25 U.S.C. 378, 379, 405, 404, 372, 
373, 483, 355, unless otherwise noted.

    4a. The cross references for part 152 are revised to read as 
follows:

    Cross-references: For further regulations pertaining to the sale 
of irrigable lands, see parts 160, and 159 and Sec.  134.4 of this 
chapter. For Indian money regulations, see parts 115, 111, 116, and 
112 of this chapter. For regulations pertaining to the determination 
of heirs and approval of wills, see part 15 and subpart G of part 11 
of this chapter.

    5. Revise the heading of part 152 to read as set forth above.
    6. Remove Sec. Sec.  152.1 through 152.3, including the center 
heading preceding Sec.  152.3.
    7. Remove Sec. Sec.  152.17 through 152.35, including the center 
headings preceding Sec. Sec.  152.17, 152.33, and 152.34.
    8. Redesignate Sec. Sec.  152.4 through 152.8 as Sec. Sec.  152.701 
through 152.705.
    9. Redesignate Sec. Sec.  152.9 through 152.16 as Sec. Sec.  
152.801 through 152.808.

Subpart H--Patents in Fee, Certificates of Competency, and Orders 
Removing Restrictions

    10. Designate Sec. Sec.  152.701 through 152.705 as subpart H and 
add a subpart heading to read as set forth above.

Subpart I--Special Provisions Applicable to the Osage and Five 
Civilized Tribes

    11. Designate Sec. Sec.  152.705 and 152.801 as subpart I and add a 
subpart heading to read as set forth above.
    12. Add subparts A through G to read as set forth below.

Subpart A--General Provisions

Sec.
152.1 What does this part do?
152.2 What terms do I need to know?
152.3 Will the Secretary provide ownership information?
152.4 To whom will the Secretary provide ownership information?
152.5 Which subparts do not apply to Alaska?
Subpart B--Sales and Exchanges of Tribal Trust or Restricted Land
152.101 What transactions are covered by this subpart?

Sales and Exchanges Under a Land Consolidation Plan

152.102 What must a land consolidation plan include?
152.103 Are there any restrictions on a land consolidation plan?
152.104 How does the Secretary approve a land consolidation plan?
152.105 How does a tribe receive approval for a sale or exchange 
under a land consolidation plan?
152.106 How may the tribe use the proceeds of a sale or exchange?

Exchanges Without a Land Consolidation Plan

152.107 In the absence of an approved land consolidation plan, how 
does a tribe get approval for an exchange of tribal land?
152.108 What criteria will the Secretary use to determine whether to 
approve an exchange?
Subpart C--Negotiated Sales, Gifts, and Exchanges of Individually Owned 
Lands
152.201 What lands are covered by this subpart?
152.202 What transactions are covered by this subpart?
152.203 Who may convey an interest in trust or restricted land?
152.204 Who can receive an interest in trust or restricted lands?
152.205 What restrictions apply to a conveyance of trust or 
restricted land to fee status?
152.206 How does an owner initiate a negotiated sale, gift, or 
exchange?
152.207 Does a conveyance of a fractional interest require the 
consent of the co-owner(s)?
152.208 Is tribal consent required to convey an interest in trust or 
restricted land located within the tribe's jurisdiction?
152.209 Is payment required for a negotiated sale, exchange, or 
gift?
152.210 When must fair market value be determined and provided to 
the grantor?
152.211 When must the Secretary receive payment for the conveyance 
of the land?
152.212 How does the Secretary decide whether to approve a 
negotiated sale, gift, or exchange?
152.213 How does the negotiated sale or exchange occur?
152.214 When is a negotiated sale, gift or exchange effective?
152.215 How does an Indian Land Consolidation Program lien attach?
152.216 How is an Indian Land Consolidation Program lien removed?
152.217 When can a co-owner acquire an interest previously acquired 
on behalf of a tribe?
152.218 What if there are liens or other encumbrances on the lands 
to be conveyed?
152.219 How does a transaction affect collection of construction 
costs for irrigation projects?
Subpart D--Tribal Parcel Purchase
152.301 What lands are covered by this subpart?
152.302 What transactions are covered by this subpart?
152.303 How does a tribe apply for a parcel purchase?
152.304 How and when will owners be notified of an application for 
tribal parcel purchase?
152.305 Can an individual owner preempt and succeed a tribe's right 
to purchase?
152.306 How and when will the Secretary review an application for 
parcel purchase?
152.307 How and when will the conveyance instrument be executed?
Subpart E--Consolidation by Sale of Highly Fractionated Parcels
152.401 What terms do I need to know?
152.402 What lands are subject to consolidation by sale?
152.403 How do I apply to consolidate a parcel by sale?
152.404 What must the Secretary do before acting on an application 
for consolidation by sale?
152.405 What consents are necessary for a consolidation by sale?
152.406 How will the Secretary notify owners of the consolidation 
proceeding?
152.407 What action does the Secretary take on comments or 
objections?
152.408 What happens if the Secretary orders a new appraisal?
152.409 How can an owner appeal a consolidation by sale proceeding?
152.410 How will the Secretary notify owners of a sale after appeals 
have been decided?
152.411 Who may participate in an auction or sealed bid sale?
152.412 How does a tribe reserve its right to match the highest bid?
152.413 How will the Secretary determine the successful bidder?
152.414 What happens if no bid matches the fair market value?
152.415 When must the highest bidder pay for the purchase?
152.416 How will proceeds be distributed?
152.417 Is Federal financial assistance available to support a 
bidder's purchase?
152.418 What title is acquired?
Subpart F--Partitions in Kind
152.501 What lands are covered by this subpart?
152.502 When does this subpart apply?
152.503 How can an owner initiate a partition action?
152.504 How will you notify the applicant's co-owners of an 
application for partition?
152.505 How and when will you review an application?
152.506 When will you execute the conveyance instruments?

[[Page 45215]]

Subpart G--Mortgages and Deeds of Trust
152.601 What does this subpart do?
152.602 How do owners submit an application for approval of a 
mortgage or deed of trust?
152.603 How will the Secretary review the application?
152.604 How may the mortgage or deed of trust be enforced?
152.605 Does the land remain in trust as a result of foreclosure or 
sale?
152.606 How does the Paperwork Reduction Act affect this part?

Subpart A--General Provisions


Sec.  152.1  What does this part do?

    This part explains the policy and procedures for conveying trust or 
restricted Indian land or removing Indian land from trust or restricted 
status.


Sec.  152.2  What terms do I need to know?

    As used in this part:
    Fair market value means the value of an interest in land determined 
in accordance with the Uniform Standards of Professional Appraisal 
Practice (USPAP), or an alternative system we may utilize for 
establishing fair market value.
    Family farm means land used for agricultural production owned and 
operated by the owner(s) and/or his immediate family. The family farm 
can include a house or residence.
    Fee land means land or an interest in land that is not trust or 
restricted.
    Fee status means the interest in a parcel of land is held by the 
owner without restrictions on alienation or encumbrance and not in 
trust by the United States for that owner.
    Fractional interest means an undivided interest in Indian land 
owned in common by Indian or tribal landowners and/or fee owners.
    Indian means any person who:
    (1) Is a member of any federally recognized tribe or, for purposes 
of land transactions in Alaska, can demonstrate Alaska Native ancestry;
    (2) Is eligible to become a member of any federally recognized 
tribe;
    (3) Is a descendent of a member and said descendent was, on June 1, 
1934, physically residing on a federally recognized Indian reservation;
    (4) Possesses a total of one-half or more degree Indian blood;
    (5) Is an owner (as of October 27, 2004) of a trust or restricted 
interest in land; or
    (6) With respect to land in the State of California, is an owner of 
a trust or restricted interest in land in California.
    Land consolidation plan means a tribal plan for eliminating 
fractionation and/or consolidating tribal landholdings.
    Owner(s) means, except in subpart D of this part, the tribe or 
individual person or persons who are the beneficiaries of trust land or 
who hold title to restricted land. In subpart D of this part, owner 
also includes individuals and entities that hold title in fee status.
    Restricted land means land or an interest therein the title to 
which is held by an Indian or a tribe and which can only be alienated 
or encumbered by the owner with the approval of the Secretary because 
of limitations in the conveyance instrument under federal law.
    Secretary/we/our/us means the Secretary of the Interior or an 
authorized representative.
    Tribal land means tribal trust land and other tribally owned land 
that is subject to any general restrictions on alienation imposed by 
federal law.
    Tribe means any Indian tribe, nation, band, pueblo, town, 
community, rancheria, colony, or other group of Indians, which is 
recognized by the Secretary as eligible for the special programs and 
services provided by the Bureau of Indian Affairs, and listed in the 
Federal Register under the Act of November 2, 1994 (108 Stat. 4792; 25 
U.S.C. 479a-1).
    Trust land means land or an interest therein that the United States 
holds in trust for the benefit of an Indian or a tribe.
    You/I means the reader of this regulation.


Sec.  152.3  Will the Secretary provide ownership information?

    Yes. We will provide ownership information under part 150 of this 
chapter to an individual or tribe interested in conveying or acquiring 
by negotiated sale, gift, or exchange. We will, through the Land and 
Title Records Office and the local BIA Agency and local Trust Officer, 
provide the names and mailing addresses of the owners of a parcel of 
trust or restricted lands, the location of the parcel, and the 
percentage of undivided interest owned by each owner. A request for 
ownership information must be in writing and must include the legal 
description or other identifier of the parcel and how the applicant 
meets the requirements of Sec.  152.4.


Sec.  152.4  To whom will the Secretary provide ownership information?

    Anyone may receive information under part 150 of this chapter. We 
will provide ownership information to:
    (a) Owners, including owners holding an interest in fee status, of 
a parcel of trust or restricted land on the same reservation;
    (b) The tribe that exercises jurisdiction over the parcel;
    (c) A person eligible for membership in that tribe;
    (d) Any person or entity that is leasing, using, consolidating, or 
applying to lease, use or consolidate trust or restricted lands on that 
reservation; or
    (e) Anyone authorized by an individual owner to receive the 
information.


Sec.  152.5  Which subparts do not apply to Alaska?

    (a) Subparts B and D of this part do not apply to Alaska.
    (b) In subparts C and E of this part, the term ``tribe'' includes 
the Metlakatla Indian Community but does not include any other Alaska 
tribe.
    (c) Subparts F, G and H of this part apply in their entirety to 
individually owned restricted lands in Alaska.

Subpart B--Sales and Exchanges of Tribal Trust or Restricted Land


Sec.  152.101  What transactions are covered by this subpart?

    Except as provided in this subpart or as authorized by a specific 
act of Congress, tribal land may not be sold, exchanged, or otherwise 
conveyed. This subpart authorizes us to approve:
    (a) Negotiated sales and exchanges of tribal land, where made under 
a land consolidation plan approved by us under this subpart; and
    (b) Exchanges of tribal land, when the fair market value of the 
land being received in exchange is substantially equal to or greater 
than the fair market value of the tribal land being conveyed.

Sales and Exchanges Under a Land Consolidation Plan


Sec.  152.102  What must a land consolidation plan include?

    A land consolidation plan must include:
    (a) A description and map of the general area within which are 
located the tribal lands and interests to be conveyed, and the lands 
and interests to be acquired through exchange or purchased with the 
sale proceeds;
    (b) An explanation of how the plan will facilitate the elimination 
of fractionation and/or the consolidation of tribal landholdings; and
    (c) An appropriate supporting tribal resolution.


Sec.  152.103  Are there any restrictions on a land consolidation plan?

    Yes. A land consolidation plan may not authorize land sales or 
other types of land transactions that are prohibited

[[Page 45216]]

by the tribe's constitution or other governing document.


Sec.  152.104  How does the Secretary approve a land consolidation 
plan?

    We may approve the land consolidation plan if it is consistent with 
the requirements of this subpart. We will take action on the tribe's 
land consolidation plan (or amended plan) within 120 working days of 
our receiving a complete plan and supporting tribal resolution.


Sec.  152.105  How does a tribe receive approval for a sale or exchange 
under a land consolidation plan?

    (a) The tribe must request Secretarial approval for each sale or 
exchange made under an approved land consolidation plan by submitting a 
tribal resolution that identifies the land(s) involved and requests 
Secretarial approval for the sale or exchange.
    (b) Upon receiving an appropriate authorizing resolution requesting 
approval for a sale or exchange, we will:
    (1) Prepare a conveyance instrument; and
    (2) Determine fair market value.
    (c) We will approve the sale or exchange of land if:
    (1) The land being sold or exchanged is identified for conveyance 
in an approved land consolidation plan; and
    (2) The tribe receives payment equal to at least 90 percent of the 
fair market value of the land being sold or exchanged. Such payment may 
include any combination of cash or land equal to or greater than the 
requisite percentage.


Sec.  152.106  How may the tribe use the proceeds of a sale or 
exchange?

    (a) Any proceeds from any sale or exchange made under an approved 
tribal land consolidation plan must be:
    (1) Deposited in a segregated, interest-bearing trust account 
established and maintained by the Secretary; and
    (2) Used only for the purchase of other lands, as identified in the 
land consolidation plan.
    (b) Any fee land purchased with the proceeds derived from any sale 
or exchange made under an approved land consolidation plan may be 
placed in trust status upon satisfying any applicable requirements in 
part 151 of this chapter.

Exchanges Without a Land Consolidation Plan


Sec.  152.107  In the absence of an approved land consolidation plan, 
how does a tribe get approval for an exchange of tribal land?

    (a) To obtain approval for an exchange of tribal land, a tribe must 
submit an appropriate authorizing resolution that identifies the lands 
involved and requests our approval for the exchange.
    (b) Upon receiving an appropriate authorizing resolution requesting 
Secretarial approval, we will:
    (1) Prepare a conveyance instrument or approve a conveyance 
instrument prepared by a tribe; and
    (2) Determine fair market value of the tribal land to be conveyed 
and of the land to be acquired in the exchange.


Sec.  152.108  What criteria will the Secretary use to determine 
whether to approve an exchange?

    We will approve the exchange of land in the absence of an approved 
land consolidation plan only if:
    (a) The land the tribe is acquiring has a fair market value equal 
to or greater than that of the land being conveyed, and
    (b) If the land to be acquired is in fee status, the acquisition 
meets the requirements set forth in part 151 of this chapter.

Subpart C--Negotiated Sales, Gifts, and Exchanges of Individually 
Owned Lands


Sec.  152.201  What lands are covered by this subpart?

    This subpart applies to whole or fractional trust and restricted 
interests in land owned by an Indian. The land can be located on or off 
a reservation. This subpart also applies to severed mineral interests.


Sec.  152.202  What transactions are covered by this subpart?

    (a) Transactions covered by this part include:
    (1) Negotiated sales, gifts, and exchanges, whereby a conveyance 
instrument is executed by or on behalf of the trust or restricted 
owners, subject to Secretarial approval; and
    (2) Partitions accomplished by exchanges of deeds among all of the 
owners, rather than by application to the Secretary under subpart F of 
this part.
    (b) The following transactions are not covered by this subpart:
    (1) Conveyances made by the Secretary without the consent of all of 
the owners; and
    (2) Conveyances or purchases made during a probate of trust or 
restricted land.


Sec.  152.203  Who may convey an interest in trust or restricted land?

    (a) Unless otherwise prohibited by law, the following individuals 
or entities may convey an interest in trust or restricted land with the 
approval of the Secretary:
    (1) Any individual owner 18 years of age or older may convey his or 
her interest;
    (2) Guardians, conservators, or other fiduciaries who are appointed 
by a court of competent jurisdiction and who have been granted the 
authority to convey, may convey trust or restricted land belonging to 
their Indian wards who are minors, non compos mentis, or otherwise 
under legal disability; and
    (3) Parents may convey their children's fractional interests in 
trust or restricted land only for the purposes of consolidation.
    (b) Except where otherwise prohibited, an adult or legal entity who 
has been given a written power of attorney may convey trust or 
restricted land. The power of attorney must:
    (1) Meet all of the formal requirements of any applicable tribal or 
state law;
    (2) Identify the attorney-in-fact and the land to be conveyed; and
    (3) Describe the scope of the power granted and any limits thereon.


Sec.  152.204  Who can receive an interest in trust or restricted 
lands?

    (a) Subject to the conditions in this subpart, trust or restricted 
land may be conveyed in trust status to:
    (1) The tribe having jurisdiction over the parcel;
    (2) Any Indian, as defined in Sec.  152.1; or
    (3) Any trust or restricted co-owner, as identified in our records 
as of the date on which the grantor's application to convey is filed.
    (b) Subject to the restriction in Sec.  152.205, any individual or 
entity may receive the interest in fee status. In addition, any 
individual or entity not eligible under paragraph (a) of this section 
to receive an interest in trust status must receive the interest in fee 
status.


Sec.  152.205  What restrictions apply to a conveyance of trust or 
restricted land to fee status?

    An owner of trust or restricted land who applies to convey that 
interest to fee status must notify the tribe with jurisdiction over the 
parcel and provide us with a copy of the notification.
    (a) Except as provided in paragraph (b) of this section, when the 
tribe with jurisdiction over the parcel receives notice, the tribe:
    (1) Has a maximum of 30 days to notify us of its intent to 
purchase; and
    (2) Has the opportunity within 30 days after its statement of 
intent to:
    (i) If the conveyance is a sale, pay the purchase price;
    (ii) If the conveyance is a gift, pay the fair market value; or

[[Page 45217]]

    (iii) If the conveyance is an exchange, pay the total payment 
received by the grantor.
    (b) The tribe may not exercise its rights under paragraph (a) of 
this section, if the parcel or interest to be conveyed is part of a 
family farm and is being conveyed to a member of the grantor's family 
who is residing on, or working, the farm. For purposes of this section, 
``member of the grantor's family'' means:
    (1) A lineal descendant of the grantor;
    (2) A lineal descendant of the grandparents of the grantor; or
    (3) The spouse of the grantor or of a person described in 
paragraphs (b)(1) or (b)(2) of this section.
    (c) Where a conveyance is made to a family member under paragraph 
(b) of this section, the deed must include a statement that the tribe 
will have the rights identified in paragraph (a) of this section if the 
grantee attempts to convey to a non-family member, except if the 
conveyance is a mortgage or deed of trust or the tribe provides a 
written waiver of its right to purchase.


Sec.  152.206  How does an owner initiate a negotiated sale, gift, or 
exchange?

    To initiate a negotiated sale, gift, or exchange, the owner must 
provide us with a written request that includes the following:
    (a) A description of the land;
    (b) The proposed grantee and his or her tribal affiliation, if any;
    (c) Any limitations or encumbrances known by the grantor on his or 
her right to convey the land;
    (d) Any intention to reserve rights to the land;
    (e) Whether the owner waives his or her right to receive 
information regarding fair market value for this transaction under 
Sec.  152.210(b); and
    (f) Terms of the sale, gift, or exchange.


Sec.  152.207  Does a conveyance of a fractional interest require the 
consent of the co-owner(s)?

    No. An Indian may convey a fractional interest without the consent 
of co-owner(s).


Sec.  152.208  Is tribal consent required to convey an interest in 
trust or restricted land located within the tribe's jurisdiction?

    (a) If the grantor owns 100 percent of the trust and restricted 
interests in a parcel, tribal consent for conveyance of the interest is 
not required.
    (b) If the grantor owns less than 100 percent of the trust and 
restricted interests in the parcel, tribal consent to convey the 
interest is required only if:
    (1) The tribe has jurisdiction over the parcel; and
    (2) Applicable tribal law requires approval before a conveyance can 
occur.


Sec.  152.209  Is payment required for a negotiated sale, exchange, or 
gift?

    No. A conveyance may be made to any individual or entity at any 
negotiated price or for no payment. Our approval of the conveyance does 
not constitute a breach of trust if either:
    (1) We have provided to the grantor an estimate of value; or
    (2) The grantor waives the right to information about fair market 
value in accordance with Sec.  152.210.


Sec.  152.210  When must fair market value be determined and provided 
to the grantor?

    (a) Except as provided in paragraph (b) of this section, the 
grantor must be notified of the fair market value of his or interest.
    (b) The grantor may waive the right to be provided with fair market 
value information on the interest being conveyed only if:
    (1) The grantee acquires the interest in trust or restricted 
status; and
    (2) One of the following criteria is met:
    (i) The grantee is an Indian and is the grantor's spouse, lineal 
ancestor, lineal descendant, sibling, or blood relative; or
    (ii) The interest being conveyed is a fractional interest of 5 
percent or less, as reflected in our records as of the date on which 
the application is filed, and the grantee is an Indian co-owner or the 
tribe having jurisdiction over the parcel.
    (c) If the interest has been conveyed under paragraph (b) of this 
section, the interest may not be conveyed out of trust or restricted 
status for 5 years.


Sec.  152.211  When must the Secretary receive payment for the 
conveyance of the land?

    (a) We must receive any payment, on behalf of the grantor, no later 
than when the grantor executes the deed, unless:
    (1) The grantor agrees to a deferred payment;
    (2) The purchaser is the Federal Government; or
    (3) The payment is escrowed.
    (b) To proceed by a deferred payment under paragraph (a) of this 
section, we may develop a memorandum of sale, or approve a memorandum 
of sale developed by the parties to the sale, that includes the 
following terms:
    (1) A contract for delivery of title upon payment in full of the 
amount of the agreed payment;
    (2) How revenues will be distributed during the period of the 
deferred payment;
    (3) Late fees and penalties for failure to comply with the terms of 
the sale;
    (4) Contract adjustments;
    (5) If the conveyance is to fee status, terms requiring that the 
purchaser pay not less than 10 percent of the purchase price in advance 
and terms for the payment of the remaining amount in installments plus 
interest acceptable to the Secretary and the Indian owner; and
    (6) Provisions for default, including a provision that if the 
purchaser defaults in the first or subsequent payments, all payments, 
including interest, previously made will be forfeited to the Indian 
owner(s).
    (c) With a deferred payment under paragraphs (a) and (b) of this 
section, we will hold the deed executed by the grantor(s). We will 
approve and deliver the deed only upon full compliance with the terms 
of sale.


Sec.  152.212  How does the Secretary decide whether to approve a 
negotiated sale, gift, or exchange?

    We will review the application and may approve a negotiated sale, 
gift, or exchange if:
    (a) It does not increase the number of fractional interests;
    (b) There is no evidence of fraud or undue influence, or criminal 
inducement;
    (c) There is no reason to believe the grantor lacks the legal 
capacity to convey; and
    (d) The parcels conveyed and acquired will have access to the 
parcel as required by law.


Sec.  152.213  How does the negotiated sale or exchange occur?

    (a) The purchaser or grantee must deposit with us any proceeds from 
a negotiated sale or exchange and we shall deposit the proceeds into 
the grantor's Individual Indian Money account upon our approval.
    (b) The grantor will execute the conveyance document, which must:
    (1) Include the date of execution and the land description; and
    (2) Comply with any boundary standards established by the 
Department of the Interior, if the parcel is conveyed in trust.
    (c) We must promptly record the conveyance document at the Land 
Title Records Office.


Sec.  152.214  When is a negotiated sale, gift, or exchange effective?

    (a) A negotiated sale, gift, or exchange is effective when we 
approve the deed.
    (b) If we approve the deed after the grantor dies, the sale, gift, 
or exchange is effective on the date the grantor signed the deed.
    (c) If land is purchased for the tribe under the Indian Land 
Consolidation Program, title will vest in the tribe on the date the 
conveyance is approved, subject to the type of lien described in 25 
U.S.C. 2213(b).

[[Page 45218]]

Sec.  152.215  How does an Indian Land Consolidation Program lien 
attach?

    A lien in the amount of the purchase price will attach to the 
income derived from any interest purchased for a tribe under the Indian 
Land Consolidation Program, until the lien has been satisfied or we 
remove it. Pending such satisfaction or removal, all transaction 
documents entered into or approved after the date of attachment must 
provide for the payment of income directly to us, for deposit in the 
Acquisition Fund for the Indian Land Consolidation Program.


Sec.  152.216  How is an Indian Land Consolidation Program lien 
removed?

    (a) In consultation with a tribe, we may remove a lien on income 
derived from an acquired interest.
    (1) The removal may be based on income derived from any interest 
conveyed to the tribe under the Indian Land Consolidation Program.
    (2) The total of liens that we remove in a year may not exceed the 
total income deposited in the Acquisition Fund for the tribe during 
that period.
    (b) We may remove at any time a lien on income derived from an 
acquired interest if we make a finding that:
    (1) The costs of administering the interest will exceed the 
projected income to be derived therefrom; or
    (2) The amount secured by the lien will not be recovered within a 
reasonable period of time.


Sec.  152.217  When can a co-owner acquire an interest previously 
acquired on behalf of a tribe?

    This section applies when a fractional interest has been conveyed 
to a tribe under the Indian Land Consolidation Program but remains 
subject to an Indian Land Consolidation Program lien.
    (a) Any trust or restricted co-owner of the parcel has an option to 
purchase the interest upon the payment or pledge to us of the full 
amount paid for that interest under the following conditions:
    (1) The co-owner must purchase all of the acquired interests in the 
parcel which are subject to a lien;
    (2) The co-owner may not remove any interest acquired from trust or 
restricted status except in carrying out the foreclosure of an approved 
mortgage in accordance with subpart G of this part; and
    (3) The option to purchase will not be available if the tribe 
already owns any interest in the parcel that is not subject to the 
lien, unless the tribe consents.
    (b) To facilitate exercise of the purchase option, a co-owner may 
request that we provide notice of any initial acquisition in a given 
parcel on behalf of a tribe under the Indian Land Consolidation 
Program. In addition, we will provide notice of subsequent acquisition 
to the co-owner so long as he or she has previously purchased an 
interest offered in the same parcel.


Sec.  152.218  What if there are liens or other encumbrances on the 
lands to be conveyed?

    (a) If there are encumbrances that may transfer with the land, then 
no further action will be taken.
    (b) All financial liens, including collection of construction 
charges or other restrictions, must be cleared before conveyance.


Sec.  152.219  How does a transaction affect collection of construction 
costs for irrigation projects?

    (a) If the land will remain in trust or restricted status following 
the sale, gift or exchange, then collection of all construction costs 
within Indian irrigation projects is deferred as long it remains in 
trust or restricted status. However, the following conditions apply:
    (1) At the time of sale, we will deduct delinquent operation and 
maintenance charges from the proceeds of the sale unless the seller 
makes acceptable arrangements to provide for their payment before 
approval of the sale; and
    (2) We will insert a lien clause covering all unpaid irrigation 
construction costs, past and future, in the instrument of conveyance 
issued to purchasers of restricted or trust lands that are under an 
Indian irrigation project.
    (b) If the land is conveyed in fee status, then the person 
acquiring the land must enter into an agreement to pay:
    (1) The pro rata share of the construction of the project 
chargeable to the land;
    (2) All construction costs that accrue in the future; and
    (3) All future charges assessable to the land which are based on 
the annual cost of operation and maintenance of the irrigation system.

Subpart D--Tribal Parcel Purchase


Sec.  152.301  What lands are covered by this subpart?

    This subpart applies to all parcels of trust and restricted land, 
including parcels in which fractional interests are held in fee status.


Sec.  152.302  What transactions are covered by this subpart?

    (a) This subpart authorizes us to convey the fractional interests 
of all non-consenting owners, including those whose interests are held 
in fee status, to a tribe, if the tribe:
    (1) Owns at least 50 percent of the interests in the parcel; or
    (2) Has obtained the consents of the owners of at least 50 percent 
of ownership interests.
    (b) The interests of the non-consenting owners may include the 
interests of any undetermined heirs or devisees of trust or restricted 
interests and the interests of any owners whose whereabouts are 
unknown.
    (c) An individual owner in authorized possession of the entire 
parcel may preempt the tribe's application and succeed to the tribe's 
right to purchase, under certain conditions as described in Sec.  
152.305.
    (d) Our authority to approve and implement a parcel purchase under 
this section by executing the necessary conveyance instrument is not 
affected or diminished by the existence of a tribal land consolidation 
plan approved under subpart B of this part.


Sec.  152.303  How does a tribe apply for a parcel purchase?

    (a) A tribe may apply for a parcel purchase when the tribe has 
either:
    (1) Acquired at least 50 percent of the interests in a parcel; or
    (2) Obtained the consent of the owners of at least 50 percent of 
such interests, including interests already owned by the tribe.
    (b) An application for parcel purchase must include:
    (1) An appraisal prepared in accordance with Uniform Standards for 
Professional Appraisal Practice that establishes the fair market value 
of the parcel as of the date the application is filed;
    (2) A certified title report or consent forms from the owners, 
reflecting that the tribe has met the requirements of paragraph (a) of 
this section; and
    (3) A deposit of the purchase funds needed to compensate the owners 
of all of the non-consenting and non-tribal consenting interests in the 
parcel, based on the tribe's appraisal.
    (c) This paragraph applies when a tribe has acquired at least 50 
percent of the interests in a parcel, but is unable to furnish the 
deposit required by paragraph (b)(3) of this section. Under certain 
circumstances, we may provide the funds needed to complete the parcel 
purchase.


Sec.  152.304  How and when will owners be notified of an application 
for tribal parcel purchase?

    (a) Upon receiving an application for parcel purchase under Sec.  
152.303, we

[[Page 45219]]

must notify any non-consenting owners of the tribe's intent to purchase 
their interests under this subpart, even if they have previously 
refused to consent.
    (1) The notice must provide the non-consenting owners with copies 
of the appraisal and advise that the tribe has offered to purchase 
their interests at fair market value or better, as reflected by the 
tribe's appraisal.
    (2) If the fair market value is adjusted upon review of the 
appraisal under Sec.  152.306, we must again provide notice of the 
offer to purchase under paragraph (a) of this section.
    (b) We will conduct a reasonable search for any owners whose 
whereabouts are unknown. We will give notice to owners whose 
whereabouts are unknown by publication in at least one newspaper of 
general circulation in the area of the parcel at least 90 days before 
closing of the purchase.
    (c) Any notice given under this section must:
    (1) Instruct the owners to submit objections to the appraisal 
within 90 days from the date of the notice; and
    (2) Advise that any owner who has been in authorized possession of 
the entire parcel for at least 3 years before the tribe's application 
can purchase the parcel after notifying us of the intent to purchase as 
required by Sec.  152.305.


Sec.  152.305  Can an individual owner preempt and succeed a tribe's 
right to purchase?

    (a) An individual owner in actual use and possession of the entire 
parcel for 3 years before the tribe's purchase application may preempt 
and succeed to the tribe's right to purchase the interests of other 
individual owners. To do this, he or she must submit to us a notice of 
intent to purchase within 90 days of receiving the notice described in 
Sec.  152.304. The individual owner's notice of intent to purchase must 
include:
    (1) Proof of authorized possession during the requisite 3-year 
period; and
    (2) A deposit of the purchase funds needed to compensate the owners 
of the remaining or non-purchaser's interests, based on the tribe's 
appraisal.
    (b) We will review the individual owner's notice of intent and 
determine if the individual owner has been in authorized possession of 
the entire parcel for the requisite 3-year period.
    (1) If the individual owner is found to be qualified, we will 
refund the deposit made by the tribe and process the application of the 
owner exercising the option to purchase.
    (2) We must then advise the individual owner that:
    (3) All of the outstanding individually owned interests in the 
parcel will be conveyed without further owner consent, based on tribe's 
original application; and
    (4) Any tribally owned interests in the parcel will be conveyed 
only with the consent of the tribe.


Sec.  152.306  How and when will the Secretary review an application 
for parcel purchase?

    (a) We will review the appraisal and any objections to it after:
    (1) The notice period required by Sec.  152.304(a) ends; and
    (2) We determine whether the application is to be processed on 
behalf of the initiating tribe or any individual owner exercising an 
option to purchase.
    (b) If we do not approve the appraisal, we will establish fair 
market value and notify the tribe what additional funds are needed to 
compensate the outstanding owners at fair market value. If we approve 
the appraisal, we will notify any objecting owner of the right to 
appeal under Part 2 of this title, before taking any further action on 
the application.
    (c) If it appears that all of the interests in the parcel can be 
purchased by agreement among the owners, we must withhold action on the 
application and assist in preparing the conveyance documents needed to 
affect the parcel purchase by negotiated conveyance. If it appears that 
some of the interests cannot be purchased by negotiation, we must issue 
a formal decision on the application and execute the conveyance 
instrument needed to affect the parcel purchase.


Sec.  152.307  How and when will the conveyance instrument be executed?

    (a) No sooner than 30 days after the exhaustion of any appellant's 
administrative remedies, we must issue a conveyance order transferring 
the remaining or non-purchaser's interests in the parcel, subject to 
any existing liens and encumbrances. The order may include any 
interests owned by the tribe if:
    (1) A qualifying owner has exercised his or her option to purchase; 
and
    (2) The tribe has consented to convey its interest by an 
appropriate authorizing resolution.
    (b) When we issue the conveyance order, we must:
    (1) Notify all owners whose interests have been conveyed as 
required by Sec.  152.304; and
    (2) Record the conveyance order in the appropriate Land Titles and 
Records Office as required by part 150 of this chapter, and in the 
appropriate county office if interests in fee status are involved.

Subpart E--Consolidation by Sale of Highly Fractionated Parcels


Sec.  152.401  What terms do I need to know?

    As used in this subpart:
    AIPRA means the American Indian Probate Reform Act of 2004.
    Consolidation by sale means a procedure by which the ownership of 
interests in a parcel of highly fractionated land is consolidated by 
one or more of the eligible bidders' asking the Secretary to sell the 
parcel.
    Bona fide means that an owner of an interest in the subject parcel 
has, in the case of a residence, maintained it continuously for the 
preceding 3 years with permission or, in the case of a farm, ranch or 
other business, operated it on the parcel for the preceding 3 years, in 
each case under:
    (1) A lease or other agreement that has been approved by the 
Secretary;
    (2) An owner management lease under AIPRA; or
    (3) Other documented permission.
    Eligible bidder means:
    (1) The tribe with jurisdiction over the parcel subject to 
consolidation by sale;
    (2) Any person who is a member or eligible to be a member of the 
tribe with jurisdiction over the parcel;
    (3) Any person who is a member or eligible to be a member of any 
other tribe if such person already owns an undivided interest in the 
parcel at the time of the consolidation by sale; or
    (4) Any lineal descendant of the original allottee of the parcel 
who is a member or eligible to be a member of a tribe or, with respect 
to a parcel located in California that is not within a tribe's 
reservation or not otherwise subject to a tribe's jurisdiction, who is 
a member or eligible to be a member of a tribe or who owns a trust or 
restricted interest in the parcel.
    Highly fractionated land means trust or restricted land that has 
either:
    (1) From 50 to 99 co-owners of undivided trust or restricted 
interests, with no single co-owner who owns an undivided trust or 
restricted interest in the parcel that is more than 10 percent of the 
entire undivided ownership of the parcel; or
    (2) 100 or more co-owners of undivided trust or restricted 
interests in the parcel.


Sec.  152.402  What lands are subject to consolidation by sale?

    (a) Consolidation by sale applies to trust and restricted lands, on 
or off the reservation, that are highly fractionated parcels.
    (b) Consolidation by sale will include:
    (1) All of the interests in such a parcel, including interests held 
in fee status; and

[[Page 45220]]

    (2) Surface and subsurface estates.
    (c) If the surface and subsurface estates have been severed, only 
the surface estate can be consolidated by sale under this subpart. 
Subsurface estates that have been severed cannot be consolidated by 
sale under this subpart.


Sec.  152.403  How do I apply to consolidate a parcel by sale?

    To apply for consolidating a parcel you must:
    (a) Be an eligible bidder; and
    (b) Submit a completed consolidation by sale application form.


Sec.  152.404  What must the Secretary do before acting on an 
application for consolidation by sale?

    (a) Upon receiving an application, we will decide:
    (1) Whether the parcel is highly fractionated;
    (2) What owner consents are needed and whether they have been 
obtained;
    (3) Costs of providing the notice;
    (4) If there are owners of interests in the parcel who cannot be 
identified or located, the procedures for locating owners whose 
whereabouts are unknown have been followed; and
    (5) The fair market value of the property.
    (b) If we determine that a consolidation for sale may proceed, then 
we will promptly notify the applicant in writing. The notice will 
include:
    (1) A statement that the application is complete;
    (2) The estimated costs to the applicant for providing notice to 
the owners of the parcel, including the costs of mailing and publishing 
the notice, and a statement that the applicant must either pay the 
costs or furnish a sufficient bond to cover such costs;
    (3) The date by which payment must be made to confirm intent to 
proceed with the consolidation by sale application; and
    (4) Any other information required to process the application.


Sec.  152.405  What consents are necessary for a consolidation by sale?

    (a) For all parcels, we will work with the applicant to obtain 
consents of the following owners of interests in the parcel to be 
consolidated by sale:
    (1) Consent of the tribe with jurisdiction over the parcel if the 
tribe owns an undivided interest in the parcel;
    (2) Consent of each owner who has continuously maintained a bona 
fide residence on the parcel or operated a bona fide farm, ranch, or 
other business on the parcel for the 3 years before the application.
    (b) For a parcel where any individual owner's total undivided 
interest in the parcel is worth more than $1,500, we will seek 
additional consents. We will work with the applicant to seek the 
consent of owner(s) of at least 50 percent of the undivided ownership 
interest in the parcel.
    (1) Parents of minor owners and legal guardians of incompetent 
owners are considered the owners of their minor children's or ward's 
interests.
    (2) The calculation of the undivided interest will not include the 
interest of the owner requesting the consolidation.
    (c) If necessary to obtain consent of at least 50 percent of 
interests, and after we have completed a search consistent with Sec.  
152.409(b) and (c), we may consent on behalf of:
    (1) Heirs of trust or restricted interests who cannot be 
determined;
    (2) Minor or incompetent owners who have no parent or legal 
guardian; or
    (3) Missing owners.


Sec.  152.406  How will the Secretary notify owners of the 
consolidation proceeding?

    (a) Once we determine that a consolidation by sale may proceed, we 
will notify all owners of undivided interests in the parcel and the 
tribe with jurisdiction over the parcel. The notice will include:
    (1) A statement that the proceeding to consolidate the parcel of 
land by sale has been started;
    (2) The legal description of the parcel;
    (3) Each owner's ownership interest in the parcel as determined by 
the BIA based on current records;
    (4) Fair market value and instructions for making a written request 
for a copy of the appraisal;
    (5) A statement that the owner may submit written comments on or 
objections to the proposed consolidation by sale or to the appraisal 
within 90 days of receiving the notice;
    (6) A statement that the owner must, within the 90-day deadline, 
comment on or object in writing to the consolidation proceeding or the 
appraisal in order to receive notice of approval of the appraisal and 
right to appeal;
    (7) The address for requesting copies of the appraisal and the 
address for submitting comments or objections to the appraisal or to 
the consolidation sale proceeding;
    (8) The name and telephone number of the person to contact for 
information regarding the proceeding, including the time and date of 
auction of the parcel or for submitting sealed bids;
    (9) Notification that the tribe may exercise its right to match the 
highest bid on the parcel; and
    (10) Notification that co-owners may have a right to purchase the 
parcel when the highest bidder has been determined.
    (b) The notice must be mailed by certified mail, restricted 
delivery, to all owners of interests in the parcel at addresses found 
in our current records.
    (c) If the notice is returned undelivered, we will attempt to 
obtain and use a current address for such owner by a reasonable search 
of records of:
    (1) Departmental records;
    (2) Local, state, and Federal agencies;
    (3) Land records and phonebooks; and
    (4) The tribe with jurisdiction over the parcel or the tribe of 
which the noticed owner is a member.
    (d) If we are unable to find any owner, then we will publish the 
notice:
    (1) At least two times in a newspaper of general circulation in the 
county or counties in which the parcel is located or, if the tribe with 
jurisdiction over the parcel publishes a monthly tribal newspaper or 
newsletter, one time in the tribal newspaper or newsletter and one time 
in the newspaper of general circulation;
    (2) By posting the notice conspicuously in the headquarters or 
administration building or other tribal building of the tribe with 
jurisdiction over the parcel in the most appropriate location for such 
a posting; and
    (3) By publishing notice in any other place or by other means we 
deem appropriate.


Sec.  152.407  What action does the Secretary take on comments or 
objections?

    (a) We will consider all written comments and objections received 
within 90 days of the notice. We may:
    (1) Accept the appraisal if consistent with the Uniform Standards 
for Professional Appraisal Practice;
    (2) Order a new appraisal; or
    (3) Terminate the sale and notify by certified mail, restricted 
delivery, the applicant and all currently known owners of interests in 
the parcel.
    (b) If we receive no comments or objections to the consolidation by 
sale within 90 days of the notice, we will accept the appraisal and 
proceed with the sale.


Sec.  152.408  What happens if the Secretary orders a new appraisal?

    (a) If we order a new appraisal, where the appraisal results in a 
lower valuation of the land, we will provide notice of the results of 
the new appraisal to all owners of interests in the parcel, and where 
the new appraisal results in a value of the land that is equal to or 
greater than that of the earlier appraisal, we will provide the results 
of the new appraisal to the tribe with jurisdiction over the parcel and 
all persons who submitted written comments on or

[[Page 45221]]

objections to the proposed partition or the appraisal, at addresses 
found in our current records with a notice including the following 
information:
    (1) The results of the new appraisal;
    (2) Notification that the owners can submit written comments on or 
objections to the proposed consolidation by sale and/or objections to 
the appraisal within 90 days of receiving the notice;
    (3) The address for requesting copies of the appraisal and address 
for submitting comments or objections to the appraisal and/or 
consolidation sale proceeding; and
    (4) The name and telephone number of the person to contact for 
information regarding the proceeding, including the time and date of 
auction of the parcel or for submitting sealed bids.
    (b) We will send the notice of the new appraisal by certified mail, 
restricted delivery, to the tribe with jurisdiction over the parcel.
    (c) If we accept the appraisal, we will send a notice of acceptance 
to the tribe with jurisdiction over the parcel and to all persons who 
submitted written comments on or objections to the proposed 
consolidation or appraisal. The notice will include:
    (1) Results of the appraisal, which will set the minimum bid for 
the consolidation by sale;
    (2) Rights of each interest owner to review a copy of the 
appraisal;
    (3) A statement that the land will not be sold for less than the 
appraised value;
    (4) The time and date set for the auction of the parcel, or for 
submitting sealed bids; and
    (5) The owner's right to appeal, to whom the appeal should be 
submitted, and the owner's burden to submit evidence in support of the 
appeal.


Sec.  152.409  How can an owner appeal a consolidation by sale 
proceeding?

    (a) An owner may submit an appeal within 30 days of receiving the 
notice of a new appraisal under Sec.  152.408. The procedures in part 2 
of this chapter do not apply to this process.
    (b) Upon receiving the appeal, the deciding official will refer the 
appraisal issues for a desk review to an appraiser who was not involved 
in the original appraisal. The appraiser will provide review 
conclusions to the deciding official within 60 days of the referral. 
After reviewing the appraiser's review conclusions, the deciding 
official will decide all appraisal issues in the appeal and also decide 
issues in the appeal regarding the Secretary's determination to allow a 
consolidation sale of a particular parcel.
    (c) The deciding official decides all issues in an appeal and 
issues a written decision. A decision issued by the deciding official 
is final for the Department.


Sec.  152.410  How will the Secretary notify owners of a sale after 
appeals have been decided?

    After all appeals are final, we will set a time and date for a 
consolidation sale. The sale will be conducted no sooner than 30 days 
after we have mailed, via certified mail, restricted delivery, a notice 
of the sale to those owners providing comments or objections to the 
Notice of Appraisal and Sale or those person(s) requesting notification 
of sale and the tribe having jurisdiction over the parcel. In addition, 
we will publish a notice of sale:
    (a) In a newspaper of general circulation in the county or counties 
in which the parcel is located or a tribal newspaper;
    (b) By posting the notice conspicuously in the tribal headquarters 
or administration building; and
    (c) In such other locations and manner as we deem necessary.


Sec.  152.411  Who may participate in an auction or sealed bid sale?

    We will conduct the sale either by public auction or sealed bid as 
appropriate.
    (a) Only eligible bidders may participate in the auction or sealed 
bid sale.
    (b) To participate in a sealed bid sale, a bidder must submit a 
deposit of 10 percent of the full amount of the bid for the parcel, 
including for his own ownership interest in the parcel. The value of 
the bidder's ownership interest will be deducted when the final payment 
amount is calculated.


Sec.  152.412  How does a tribe reserve its right to match the highest 
bid?

    Before receiving the notice of sale issued under Sec.  152.415, the 
tribe must have submitted a copy of the authorizing tribal law or 
resolution or a letter of a tribal officer authorized by tribal law, 
stating the tribe's intent to reserve the right to match.


Sec.  152.413  How will the Secretary determine the successful bidder?

    (a) The parcel will be sold to the highest bidder unless certain 
other purchasers listed in paragraph (b) of this section match the 
highest bid. The sale price must be at least equal to the final 
appraised fair market value.
    (b) We will determine which entities have a right to match the 
highest bid. The right to match depends on the following criteria:
    (1) If the highest bidder is a member of the tribe with 
jurisdiction over the parcel, then he/she may purchase the parcel, 
unless one of the restrictions in paragraph (c) of this section 
applies; and
    (2) If the highest bidder is a not a member of the tribe with 
jurisdiction over the parcel, then the highest bidder may purchase the 
parcel, unless one of the restrictions in paragraph (d) of this section 
applies.
    (c) A highest bidder who otherwise qualifies under paragraph (b)(1) 
of this section may not purchase the parcel if either of the following 
conditions applies:
    (1) The owner of the largest interest is a member of the tribe with 
jurisdiction over the parcel, chooses to purchase the parcel, and meets 
each of the following requirements:
    (i) The owner had submitted a bid on the parcel at sale at least 
equaling the fair market value;
    (ii) At the time immediately before the sale, the owner's undivided 
interest in the parcel was greater than that of any other owner and 
equal to or greater than 20 percent of the entire undivided ownership 
of the parcel; and
    (iii) The owner submits to us, within 3 days of the date of auction 
or date for submitting sealed bids, a written notice of intent to 
purchase the parcel; or
    (2) If no single owner is identified as eligible to buy the parcel 
under paragraph (c)(1) of this section, and two or more owners who have 
equal interests, which combined are greater than any other individual 
interests in the parcel and constitute at least 20 percent of the 
entire undivided ownership in the parcel, have entered into a written 
agreement that identifies which of these owners has the right of 
purchase.
    (d) A highest bidder who otherwise qualifies under paragraph (b)(2) 
of this section may not purchase the parcel if either of the following 
conditions applies:
    (1) The owner of the largest interest in the parcel at the time of 
the sale is a member of the tribe with jurisdiction over the parcel and 
meets each of the following requirements:
    (i) The owner had submitted a bid on the parcel at sale at least 
equaling the fair market value;
    (ii) At the time immediately before the sale, the owner's undivided 
interest in the parcel was greater than that of any other owner and 
equal to or greater than 20 percent of the entire undivided ownership 
of the parcel;
    (iii) The owner submits a written notice of intent to purchase the 
parcel to us, within 3 days of the date of

[[Page 45222]]

auction or the date for submitting sealed bids; and
    (iv) The owner tenders the amount of the highest bid within 30 days 
of the date of auction or submission of sealed bids; or
    (2) No single owner is identified under paragraph (d)(1) of this 
section, then two or more owners who each have identical interests 
equal to or greater than 20 percent of the interests in the parcel, 
match the highest bid and have entered into a written agreement that 
identifies which of these owners has the right to match the highest 
bid.
    (e) If no single owner or group of two or more owners are 
identified under paragraphs (d)(1) or (d)(2) of this section, and the 
tribe with jurisdiction has reserved its right under Sec.  152.412 to 
match the bid of the highest bidder, the tribe may proceed to exercise 
this right. It may do so by stating its intention to match the bid 
within 6 business days after the date of auction or for submitting 
sealed bids.


Sec.  152.414  What happens if no bid matches the fair market value?

    (a) If no bid submitted equals or exceeds the final appraised 
value, we may either:
    (1) Purchase the parcel for its appraised fair market value for the 
tribe; or
    (2) Terminate the consolidation by sale process.
    (b) We retain the authority to reschedule the date, place, and time 
of the sale without providing formal prior notice but will seek to 
notify interested parties. The sale will be rescheduled as promptly as 
possible, but no later than 15 days from the date of the original sale.


Sec.  152.415  When must the highest bidder pay for the purchase?

    The highest bidder or the co-owner or tribe that we determined had 
a right to match or preempt the highest bid must submit payment within 
30 days of the auction or the date for submitting sealed bids. If 
payment is not tendered in 30 days, then the following process will 
occur:
    (a) The next successful bidder identified in Sec.  152.413 will be 
notified and provided an opportunity to tender payment in 30 days;
    (b) If there is no entity identified in Sec.  152.413 that has 
exercised its right to match or preempt the highest bid, then we will 
notify the next highest bidder and provide an opportunity to tender 
payment in 30 days;
    (c) If there are no successful bids higher than fair market value, 
then the Secretary may purchase the parcel or may elect to terminate 
the consolidation proceeding or reschedule the sale (see Sec.  
152.414(b)).


Sec.  152.416  How will proceeds be distributed?

    We will distribute the proceeds of sale of the parcel to the owners 
of interests in the parcel in proportion to the ownership interest of 
each owner. We will hold the following proceeds until owners and heirs 
can be determined:
    (a) Proceeds attributable to the sale of interests of owners whose 
whereabouts are unknown; and
    (b) Proceeds of undetermined heirs, or persons whose ownership 
interests have not been recorded.


Sec.  152.417  Is Federal financial assistance available to support a 
bidder's purchase?

    We may provide grants and low interest loans to successful bidders 
at consolidation sales of parcels, but this assistance:
    (a) Is limited to 20 percent of the appraised value of the parcel 
sold; and
    (b) Must be applied only toward the purchase price of the parcel 
sold.


Sec.  152.418  What title is acquired?

    (a) The title is acquired as follows:
    (1) In trust, free and clear of any and all title or ownership of 
all persons or entities whose interest were subject to the sale, except 
the United States; and
    (2) Subject to valid existing rights, such as mortgages, easements, 
or rights-of-way.
    (b) We will execute an appropriate transfer document effecting the 
sale and recorded in the LTRO.

Subpart F--Partitions in Kind


Sec.  152.501  What lands are covered by this subpart?

    This subpart applies to any parcel of trust or restricted land with 
more than one owner, irrespective of the number of owners in the 
parcel. This subpart will not apply to the subsurface interests in a 
parcel, where those interests have been severed so as to establish 
separate surface and subsurface ownerships.


Sec.  152.502  When does this subpart apply?

    This subpart applies in cases where the owners have been unable to 
accomplish a partition in kind by exchange of deeds in accordance with 
subpart C of this part. It authorizes us to partition trust and 
restricted land with multiple owners into smaller parcels in which the 
interests of the owners are unified or consolidated.
    (a) If a partition which allocates separate parcels to each of the 
owners is not feasible, we may implement a partial partition, in which 
a portion of the parcel remains in multiple ownership.
    (b) This subpart does not authorize us to take any other action 
with respect to land which cannot be partitioned to the benefit of all 
of the owners.


Sec.  152.503  How can an owner initiate a partition action?

    Any owner of a fractional interest may apply to us for a partition 
by submitting a partition plan that contains the following information:
    (a) Legal descriptions of the parcel to be partitioned and the 
smaller parcels to be created therefrom, with an accompanying survey if 
the smaller parcels cannot be described by aliquot parts;
    (b) Appraisals of the parcel to be partitioned and the smaller 
parcels to be created from the parcel; and
    (c) Identification of ownership of the parcel to be partitioned and 
the proposed ownership of the smaller parcels to be created therefrom, 
with an accompanying title report for the whole parcel.


Sec.  152.504  How will you notify the applicant's co-owners of an 
application for partition?

    (a) Upon receiving an application for partition under Sec.  
152.503, we must notify the owners of the parcel to be partitioned and 
provide them with copies of the applicant's partition plan. We will 
take the following steps to notify all owners:
    (1) We will make a reasonable search for any owners whose 
whereabouts are unknown;
    (2) After this search, we will send a written notice of the 
application to all owners whose whereabouts we could determine; and
    (3) To notify owners we could not locate, we will publish a notice 
in newspapers of general circulation in the area of the parcel to be 
partitioned.
    (b) Our notice will instruct the owners to submit comments or 
objections or alternative partition plans to us, within 90 days of the 
date that we mail and publish the notice.
    (c) We must treat the submission of an alternative partition plan 
as a new application requiring additional notice and invitations for 
comment.


Sec.  152.505  How and when will you review an application?

    (a) At the end of the notice period required by Sec.  152.504(c), 
we must verify the ownership of the parcel to be partitioned, and 
review the partition plans and any comments.
    (1) If it appears that the parcel can be partitioned by agreement 
among all the owners, we must assist in preparing the

[[Page 45223]]

conveyance documents needed to effect a partition by exchange of 
interests.
    (2) If it appears that the parcel cannot be partitioned by 
agreement, we must issue a formal decision on the application(s).
    (b) In evaluating an application to partition, we must determine if 
the parcel can be partitioned equitably among all of the owners. In 
making that determination, we will consider whether:
    (1) After partition, each owner would hold property equal in value 
to that held before partition, in proportion to the interests of the 
other owners;
    (2) The smaller parcels created by the partition would be 
economically usable, based upon characteristics such as size, location, 
access, etc.;
    (3) Any owner has a history of using areas within the parcel to be 
partitioned, that would justify those areas being equitably partitioned 
and conveyed to that owner; and
    (4) The parcel to be partitioned contains any sites of particular 
cultural, historical, or other significance to more than one owner, 
that would make it inequitable to partition those sites and convey them 
to a single owner.
    (c) Upon a determination that a parcel cannot be partitioned in an 
equitable manner, we must notify the applicant of the right to appeal 
under part 2 of this chapter. Upon a determination that a parcel can be 
partitioned in an equitable manner, we must notify any owner that 
objected or submitted an alternative partition plan of his or her right 
to appeal under part 2 of this chapter, before taking any further 
action on the application.


Sec.  152.506  When will you execute the conveyance instruments?

    (a) No sooner than 30 days after exhausting any appellant has 
exhausted his or her administrative remedies, if our determination 
under Sec.  152.505(c) has been affirmed, we must issue a partition 
order. The order may include reference to any existing liens and 
encumbrances.
    (b) Upon issuance of the order we will notify all of the affected 
owners, in the same manner as described in Sec.  152.504. We must then 
record the partition order and any accompanying survey in the 
appropriate LTRO, in accordance with part 150 of this chapter.

Subpart G--Mortgages and Deeds of Trust


Sec.  152.601  What does this subpart do?

    This subpart applies to mortgaging of parcels of trust or 
restricted land owned by individuals, including parcels in which 
fractional interests are held in fee status.
    (a) This subpart explains how we can approve mortgages or deeds of 
trust executed by individual owners in cases where all of the trust or 
restricted interests in a parcel are:
    (1) Encumbered; and
    (2) Subject to foreclosure or sale if there is a default.
    (b) This subpart does not apply to any of the following:
    (1) Mortgages of fractional interests held in fee status;
    (2) Other types of encumbrances that may be executed or approved in 
order to secure a loan, including assignments of income derived from 
trust or restricted lands; or
    (3) Mortgages or deeds of trust of leasehold or other possessory 
interests.


Sec.  152.602  How do owners submit an application for approval of a 
mortgage or deed of trust?

    Only the owner(s) or the proposed mortgagee or beneficiary can 
submit an application for approval of a mortgage or deed of trust. The 
application must include:
    (a) An executed mortgage or deed of trust to be approved;
    (b) The promissory note defining the amount of the loan to be 
secured and other terms;
    (c) Any other documents describing the remedies available to the 
secured party in the event of a default on the loan;
    (d) An appraisal or evaluation furnished by the lender or borrower 
that establishes the fair market value of the parcel as of the date on 
which the application for loan was filed;
    (e) The loan application and any other description of how the loan 
proceeds will be used;
    (f) Any credit report or credit analysis required, obtained, or 
prepared by the proposed mortgagee or beneficiary, with a verification 
of the borrower's income or a description of other means of debt 
coverage;
    (g) Any title reports or title insurance policies required or 
obtained by the proposed mortgagee or beneficiary; and
    (h) Any necessary environmental or historic preservation 
documentation.


Sec.  152.603  How will the Secretary review the application?

    (a) Within 30 days of receiving a complete application for approval 
of a mortgage or deed of trust, we must determine whether:
    (1) The land to be encumbered has been adequately described and the 
loan documents have been properly executed;
    (2) The loan-to-value ratio is reasonable, based on the evidence of 
fair market value in the application and the lender's valuation;
    (3) The risk of default on the loan is reasonable, based on the 
evidence of the ability to repay in the application;
    (4) All of the owners of trust and restricted interests in the 
parcel have executed the mortgage or deed of trust, and any necessary 
consents have been obtained from other lienholders or encumbrancers; 
and
    (5) The remedies available to the mortgagee or beneficiary in the 
event of a default on the loan, and any rights or remedies available to 
the tribe having jurisdiction over the parcel in the event of a 
foreclosure or sale, are clearly defined in the mortgage, deed of 
trust, or other loan documents.
    (b) If we decide not to approve the mortgage or deed of trust, we 
will notify the parties of their rights to appeal under part 2 of this 
chapter.
    (c) If we decide to approve the mortgage or deed of trust, we must:
    (1) Record the approved document in the Land Titles and Records 
Office in accordance with part 150 of this chapter; and
    (2) Request an updated title status report reflecting the 
recordation.
    (d) A decision to approve a mortgage or deed of trust under this 
subpart is not appealable under part 2 of this chapter and is not 
considered to be a breach of trust.


Sec.  152.604  How may the mortgage or deed of trust be enforced?

    (a) If an owner defaults on a loan secured by an approved mortgage 
or deed of trust, the encumbered land is subject to foreclosure or sale 
in accordance with the terms of the approved document and either:
    (1) The laws of the tribe having jurisdiction over the parcel; or
    (2) If there are no applicable tribal laws, the laws of the state 
in which the land is located.
    (b) If there is a foreclosure or sale to enforce the terms of an 
approved mortgage or deed of trust, the United States:
    (1) Is not a necessary party; and
    (2) Is not required to approve any conveyance arising out of the 
proceeding.


Sec.  152.605  Does the land remain in trust as a result of foreclosure 
or sale?

    (a) If the encumbered land is purchased by a tribe or Indian as a 
result of a foreclosure or sale proceeding, title remains in trust or 
restricted status.
    (b) If the encumbered land is purchased by any other party as a 
result

[[Page 45224]]

of a foreclosure or sale proceeding, title will be taken consistent 
with the laws applicable to that foreclosure or sale proceeding.


Sec.  152.606  How does the Paperwork Reduction Act affect this part?

    The collections of information contained in Sec. Sec.  152.3, 
152.105, 152.107, 152.206, 152.217, 152.219, 152.303, 152.403, 152.412, 
152.503, and 152.602 have been approved by the Office of Management and 
Budget under 44 U.S.C. 3501 et seq. and assigned OMB Control Number 
1076-xxxx. Response is required to obtain a benefit. A Federal agency 
may not conduct or sponsor, and you are not required to respond to a 
collection of information unless the form or regulation requesting the 
information has a currently valid OMB Control Number.
    13. Revise part 179 to read as follows:

PART 179--LIFE ESTATES AND PRESENT AND FUTURE INTERESTS

Sec.
179.1 What is the purpose of this part?
179.2 What terms do I need to know?
179.3 Who can hold a life estate?
179.4 Who can be the measuring life for a life estate?
179.5 Who can be designated as a future interest holder?
179.6 Who can be members of a class?
179.7 How are interest holders determined if the conveyance document 
or order contains conditions?
179.8 How are members to be determined if there is an open class?
179.9 What are the privileges of a life tenant?
179.10 What is the life tenant's responsibility to the remainderman?
179.11 How can a future interest holder stop the life tenant from 
damaging his or her interest and substantially diminishing its 
value?
179.12 How will the Secretary distribute income and principal 
between the life tenant and the remainderman?
179.13 How will the value of a current life estate and remainder be 
determined?
179.14 How does a life estate terminate?
179.15 What if I do not want an interest in a life estate?
179.16 Why do I need to notify the Secretary about the death of a 
life tenant?
179.17 How will term estates be treated?

    Authority: 86 Stat. 530; 86 Stat. 744; 94 Stat. 537; 96 Stat. 
2515; 25 U.S.C. 2, 9, 372, 373, 487, 607, and 2201-11; 25 U.S.C. 
2201 Note; Pub. L. 108-374, 118 Stat. 1773.

    Cross-Reference: For regulations pertaining to income, rents, 
profits, bonuses and principal from Indian land and the recording of 
title documents pertaining thereto, see parts 15, Probate; 150, Land 
Records and Title Documents; 152, Issuance of Patents in Fee, 
Certificates of Competency, Removal of Restrictions, and Sale of 
Certain Indian Lands; 162, Leasing and Permitting; 163, General 
Forest Regulations; 166, General Grazing Regulations; 169, Rights-
of-Way over Indian Lands; 170, Roads of the Bureau of Indian 
Affairs; 212, Leasing of Allotted Lands for Mining; 213, Leasing of 
Restricted Lands of Members of the Five Civilized Tribes, Oklahoma, 
for Mining; 215, Lead and Zinc Mining Operations and Leases, Quapaw 
Agency; 26 CFR 20.2031-7 Gross Estates, Valuation of Annuities; 43 
CFR part 4 subpart D, Rules Applicable in Indian Affairs Hearings 
and Appeals; 43 CFR part 30, Indian Probate Hearings Procedures; for 
trespass see 25 CFR part 166.


Sec.  179.1  What is the purpose of this part?

    This part sets forth the authorities, policy, and procedures 
governing the administration of life estates and present and future 
interests in Indian land by the Secretary of the Interior. These 
regulations do not apply to any use rights assigned to tribal members 
by tribes exercising their jurisdiction over tribal lands. This part 
does not apply to any federal statutory rights to purchase or otherwise 
acquire an interest in Indian land reserved to an individual or tribe.


Sec.  179.2  What terms do I need to know?

    As used in this part:
    Class means a group of persons who share an interest in an estate.
    Condition means a qualification or restriction that must be 
satisfied or occur before an estate or interest commences, enlarges, 
reduces, or terminates. Condition includes limitations on the estates 
of grantor and grantee. Condition does not include the natural 
termination of a life estate or term estate.
    Contingent remainder means a remainder:
    (1) In an unborn person;
    (2) In a non-specified person; or
    (3) Subject to some other condition.
    Contract bonus means consideration paid or agreed to be paid as 
incentive for execution of the contract.
    Conveyance document means a legal instrument that transfers an 
interest in an estate. Conveyance document does not include a will.
    Disproportionately high means the investment expenses exceeds the 
interest income.
    Estate means the interest which a person has in Indian land. Estate 
include a life estate.
    Executory interest means a future interest which cuts short or 
springs from a preceding estate or interest that is cut short by a 
condition.
    Extant person means a living person or legally recognized existing 
entity. A living person does not include a child in gestation except 
when the child in gestation receives the estate or interest by probate 
order. If an interest is created in a child in gestation in a probate 
order, that a child will be treated as a living person only if the 
child survives at least 120 hours after its birth.
    Future interest means an interest in an estate with only a future 
right to possession and enjoyment of the Indian land, such as a 
remainder, executory interest, or reversionary interest.
    Grantee means a person who receives an interest in Indian land.
    Grantor means a person who transfers an interest in Indian land.
    Holder means a person who owns an estate or interest in Indian 
land.
    Income means the rents and profits from Indian land and the 
interest on invested principal.
    Indian land means all lands held in trust by the United States for 
individual Indians or tribes; or all lands, titles to which are held by 
individual Indians or tribes, subject to Federal restrictions against 
alienation or encumbrance.
    Life estate means an estate in Indian land the duration of which is 
measured by the life of the life tenant or other living person or 
persons.
    Life tenant means a person or persons who hold an interest in a 
life estate.
    Open class means a class in which membership has not been closed to 
persons qualifying as members.
    Open Mine Doctrine means the doctrine which allows a holder of an 
interest in a life estate to continue the exploration, extraction, and 
depletion of resources of the land and to receive any rents, royalties, 
or profits, without the consent of the remainderman, if the activity is 
in progress or a lease or contract is in effect when the life estate 
vested. Open Mine Doctrine applies to hard mineral extraction and oil 
and gas production.
    Order means a directive issued by the Secretary or a court of 
competent jurisdiction.
    Person means a specific, extant person, unless a specific section 
states otherwise.
    Present interest means an interest in an estate in Indian land with 
a right to possession and enjoyment that begins at the moment a 
conveyance takes effect.
    Principal means the corpus and capital of an interest in an estate, 
including any payment received for the sale or diminishment of the 
corpus.
    Remainder means a future interest which follows the termination of 
a life estate or term of years.
    Remainderman means one or more persons who hold a remainder.
    Reversionary interest means an interest that is held by the grantor 
and arises when any preceding estate in a grantee terminates other than 
by condition.

[[Page 45225]]

    Secretary means the Secretary of the Interior or authorized 
representative.
    Term estate means an estate which terminates upon the expiration of 
a designated time period or surrender of the interest by the interest 
holder.
    Vested means having absolute right or title in property.
    We means the Secretary of the Interior or authorized 
representative.


Sec.  179.3  Who can hold a life estate?

    Any person can hold a life estate subject to the following:
    (a) Any life estate must have no conditions in favor of the grantor 
or a grantee; and
    (b) If a life estate is granted to, or for the life of, multiple 
persons, the granting document must establish the share of the estate 
each person is to receive.


Sec.  179.4  Who can be the measuring life for a life estate?

    Any specific person or persons living at the time we approve the 
conveyance document or upon death of the decedent may be the measuring 
life for a life estate.


Sec.  179.5  Who can be designated as a future interest holder?

    Any person may be a future interest holder. However, no future 
interest subject to conditions in favor of the grantor or a grantee is 
valid if the conditions cannot be satisfied before either:
    (a) When we approve the conveyance document; or
    (b) When the decedent dies.


Sec.  179.6  Who can be members of a class?

    The members of any class are those persons who can be identified as 
persons either when we approve the conveyance or upon the death of the 
decedent.


Sec.  179.7  How are interest holders determined if the conveyance 
document or order contains conditions?

    (a) If we determine that the conveyance document imposes any 
condition on an interest in Indian land, we will determine whether the 
condition is satisfied either:
    (1) When we approve the conveyance document; or
    (2) When the decedent dies.
    (b) If the condition is established by order of some other 
authority, we will determine whether the condition is satisfied based 
upon the order.
    (c) It may happen that there are no persons when we approve the 
conveyance document, or at the death of the decedent, or by the terms 
of the order. In this case, the future interest that would have vested 
in those persons passes to the grantor or to the estate of the grantor.


Sec.  179.8  How are members to be determined if there is an open 
class?

    (a) If a class is designated as a recipient of an interest in a 
conveyance document, we will:
    (1) Identify the persons who are members of the class when we 
approve the conveyance document; and
    (2) Close the class to any additional persons who might otherwise 
qualify as members.
    (b) If a class is designated as a recipient of an interest during 
the probate process under 43 CFR part 30, we will:
    (1) Identify the persons who are members of the class as of the 
death of the decedent; and
    (2) Close the class to any additional person who might otherwise 
qualify as members of the class.
    (c) We may close any class when we:
    (1) Have received monies attributable to the interests held by the 
class; and
    (2) Have determined that there is at least one person who can 
receive the monies.
    (d) We may close any open class for any purpose that facilitates 
identification of beneficiaries and assets of the trust. We may then 
distribute the trust assets to the beneficiaries.


Sec.  179.9  What are the privileges of a life tenant?

    (a) A life tenant is granted, for the term of the life estate, the 
right to:
    (1) Possess and use estate assets;
    (2) Receive a share of the principal and income produced by the 
estate as set forth in Sec.  179.12; and
    (3) Sell the life estate described in the conveyance document or 
order.
    (b) The rights in paragraph (a) of this section apply only in the 
absence of specific provisions to the contrary in the conveyance 
document or order.


Sec.  179.10  What is the life tenant's responsibility to the 
remainderman?

    The provisions of this section apply absent specific provisions to 
the contrary in the conveyance document or order.
    (a) The life tenant has responsibilities to the remainderman as 
shown on the following table.

------------------------------------------------------------------------
If the life estate was created
             by...                      Then...          Except as to...
------------------------------------------------------------------------
(1) Probate order before June   the responsibility of   distribution of
 20, 2006, and the decedent      the life tenant to      monies from
 died before June 20, 2006.      the remainderman is     rents, cash
                                 defined by federal      bonus and
                                 law and regulation in   royalties and
                                 effect at the date of   valuation of
                                 the creation of the     the life estate
                                 life estate.            and remainder
                                                         as set forth in
                                                         this part.
(2) Operation of law under 25   (i) The life tenant
 U.S.C. 2206 or federally        may use the land or
 approved tribal probate code    structures on the
 approved under 25 U.S.C. 2205.  land (including for
                                 extraction and
                                 production of
                                 minerals, oil, gas,
                                 and timber) without
                                 the remainderman's
                                 consent; and
                                (ii) The life tenant
                                 must not destroy the
                                 estate, commit
                                 malicious waste or
                                 fail to reasonably
                                 manage the land in a
                                 manner consistent
                                 with long-time use
                                 and trust status of
                                 the land.
(3) Conveyance document before  the responsibility of   distribution of
 the effective date of this      the life tenant to      monies from
 part.                           the remainderman is     rents, cash
                                 defined by federal      bonuses, and
                                 law and regulation in   royalties and
                                 effect on the date      valuation of
                                 the life estate was     the life estate
                                 created.                and remainder
                                                         as set forth in
                                                         this part.
(4) Conveyance document after   (i) The life tenant
 the effective date of this      may use the land or
 part                            structures on the
                                 land (including for
                                 extraction and
                                 production of
                                 minerals, oil, gas,
                                 and timber) without
                                 the remainderman's
                                 consent; and
                                (ii) The life tenant
                                 must not destroy the
                                 estate, commit
                                 malicious waste, or
                                 fail to reasonably
                                 manage the land in a
                                 manner consistent
                                 with long-time use
                                 and trust status of
                                 the land.
------------------------------------------------------------------------


[[Page 45226]]

    (b) In order to preserve and protect the trust, we must review and 
make a final determination on any contract involving trust assets, 
unless the law provides otherwise.
    (c) Our authority to consent to the leasing or transfer of Indian 
land on behalf of the interest holders is not diminished or modified by 
this section.


Sec.  179.11  How can a future interest holder stop the life tenant 
from damaging his or her interest and substantially diminishing its 
value?

    If you are a future interest holder who feels that a life tenant 
may be damaging the estate, you may ask us to investigate the use of 
the land. If we find that the life tenant has taken actions not 
consistent with Sec.  179.10, we may proceed as if the life tenant has 
trespassed on the property and take action under parts 162 and 212 of 
this chapter.


Sec.  179.12  How will the Secretary distribute income and principal 
between the life tenant and the remainderman?

    (a) The Secretary must determine whether:
    (1) The Secretary ordered the distribution of the interests in the 
life estate and remainder in the probate of an estate of a decedent who 
died on or after June 20, 2006 or the Secretary approved the conveyance 
document of the interests after the effective date of these 
regulations;
    (2) An order or conveyance document specifies a distribution of 
proceeds;
    (3) The vested remainderman and life tenant have entered into a 
written agreement approved by the Secretary providing for the 
distribution of proceeds; or
    (4) The life tenant is entitled, by any document or agreement or by 
application of state law, such as the open mine doctrine, to receive 
the rents, royalties, and profits attributable to the exploration, 
extraction or depletion of estate resources.
    (b) If the Secretary determines that the conveyance is the result 
of an order distributing the probate estate of a decedent who died on 
or after June 20, 2006, or the Secretary approved the conveyance 
document of the interests after the effective date of these regulations 
and paragraphs (a)(2) and (3) of this section do not provide otherwise, 
then the Secretary must distribute all income, principal, and contract 
bonuses and royalties, to the life tenant until the life estate is 
terminated.
    (c) If the Secretary determines that the conveyance is the result 
of an order distributing the probate estate of a decedent who died 
before June 20, 2006, or the Secretary approved the conveyance document 
before the effective date of this regulation and paragraphs (a)(2), 
(3), and (4) of this section do not provide otherwise, the Secretary 
must:
    (1) Distribute all rents and profits, as income, to the current 
life tenant;
    (2) Distribute any contract bonus one-half each to the current life 
tenant and the remainderman;
    (3) In the case of mineral contracts, invest the principal, with 
interest income to be paid the life tenant during the life estate, 
except in those instances where the administrative cost of investment 
is disproportionately high, in which case paragraph (e) of this section 
applies. The principal allocated to the remainderman under this section 
will be distributed to the remainderman upon termination of the life 
estate. The life tenant will receive distribution of the principal 
allocated to the life tenant immediately.
    (d) If the Secretary determines that paragraphs (a) (2), (3), or 
(4) of this section provide otherwise, the Secretary must distribute 
the income and principal in accordance with those provisions.
    (e) In all other instances, the Secretary shall distribute the 
principal immediately according to the formulas set forth in Sec.  
179.13. All proceeds attributable to a contingent remainderman or 
future interest holder subject to class whose membership is not closed 
will be invested in an account with disbursement to take place upon 
determination of the future interest holder or closing of membership of 
the class. The life tenant will receive distribution of the principal 
allocated to the life tenant immediately.


Sec.  179.13  How will the value of a current life estate and remainder 
be determined?

    (a) We will refer to the most current version of Actuarial Table S, 
Valuation of Annuities, obtained from 26 CFR 20.2031 to determine the 
value of your life estate or remainder and distribute principal under 
Sec.  179.12(e).
    (b) Table S specifies the share attributable to the life estate and 
remainder's interest, given the age of the life tenant and an 
established rate of return. We will periodically review and revise the 
percent rate of return to be used to determine the share attributable 
to the interests of the life tenant and the remainderman. The life 
tenant will receive the balance of the distribution after the 
remainderman's share has been calculated.
    (c) Applying Table S, we will use the following formulae to 
determine the value of the interests of the life tenant and 
remainderman:
    (1) Value of Remainder = I * R, where I is the total value to be 
distributed and R is the remainder factor obtained from Table S for a 
given life tenant's age and rate of return; and
    (2) Value of Life Estate = I - Value of remainder, where I is the 
total value to be distributed and the Value of remainder was calculated 
above.


Sec.  179.14  How does a life estate terminate?

    A life estate terminates upon whichever occurs first:
    (a) The death of the person or persons used to measure the duration 
of the life estate;
    (b) The transfer by the life tenant of the interest to the 
remainderman or grantor; or
    (c) The acquisition by the life tenant of all future interests.


Sec.  179.15  What if I do not want an interest in a life estate?

    You may renounce your interest during the probate process before 
the order is issued or transfer your interest by conveyance document to 
another person.


Sec.  179.16  Why do I need to notify the Secretary about the death of 
a life tenant?

    (a) You should notify us of the death of the life tenant or other 
person used to measure the duration of the life estate to ensure that:
    (1) The records properly reflect the present and future interests 
holders; and
    (2) Any proceeds received from these interests are correctly 
distributed to the holders.
    (b) See 25 CFR 15.104 for instructions on how to notify the 
Secretary of the death.


Sec.  179.17  How will term estates be treated?

    For purposes of distribution of income, cash bonuses, and 
principal, we will treat term estates in the same manner as a life 
estate.

Title 43--Public Lands: Interior

Subtitle A--Office of the Secretary of the Interior

PART 4--DEPARTMENT HEARINGS AND APPEALS PROCEDURES

    14. Revise the authority citation for part 4 to read as follows:

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

    15. Revise the cross reference for part 4, subpart D, to read as 
follows:

    Cross-reference: For regulations pertaining to the processing of 
Indian probate matters within the Bureau of Indian Affairs, see 25 
CFR part 15. For regulations pertaining to the probate of Indian 
trust estates within the

[[Page 45227]]

Probate Hearings Division, Office of Hearings and Appeals, see 43 
CFR part 30. For regulations pertaining to the authority, 
jurisdiction, and membership of the Board of Indian Appeals, Office 
of Hearings and Appeals, see subpart A of this part. For regulations 
generally applicable to proceedings before the Hearings Divisions 
and Appeal Boards of the Office of Hearings and Appeals, see subpart 
B of this part.

    16. In subpart D, remove undesignated center heading, 
``Determination of Heirs and Approval of Wills, Except as to Members of 
the Five Civilized Tribes and Osage Indians; Tribal Purchases of 
Interests Under Special Statutes.''
    17. Revise Sec. Sec.  4.200 and 4.201 to read as follows:


Sec.  4.200  How to use this subpart.

    (a) The following table is a guide to the relevant contents of this 
part by subject matter.

------------------------------------------------------------------------
    For provisions relating to . . .              consult . . .
------------------------------------------------------------------------
(1) All proceedings in subpart D.......  Sec.  Sec.   4.200 and 4.201.
(2) Appeals to the Board of Indian       Sec.  Sec.   4.310 through
 Appeals generally.                       4.318.
(3) Appeals to the Board of Indian       Sec.  Sec.   4.320 through
 appeals from decisions of the Probate    4.326.
 Hearings Division in Indian probate
 matters.
(4) Appeals to the Board of Indian       Sec.  Sec.   4.330 through
 Appeals from actions or decisions of     4.340.
 BIA.
(5) Determinations under the White       Sec.  Sec.   4.350 through
 Earth Reservation Land Settlement Act    4.357.
 of 1985.
------------------------------------------------------------------------

    (b) Except as limited by the provisions of this part, the 
regulations in subparts A and B of this part apply to these 
proceedings.


Sec.  4.201  Definitions.

    As used in this subpart:
    Administrative law judge (ALJ) means an administrative law judge 
with OHA appointed under the Administrative Procedure Act, 5 U.S.C. 
3105.
    Agency means the Bureau of Indian Affairs (BIA) agency office, or 
any other designated office in BIA, having jurisdiction over trust or 
restricted land. This term also means any office of a tribe that has 
entered into a contract or compact to fulfill the probate function 
under 25 U.S.C. 450f or 458cc.
    BIA means the Bureau of Indian Affairs within the Department.
    Board means the Interior Board of Indian Appeals (IBIA) within OHA, 
authorized by the Secretary to hear, consider, and determine finally 
for the Department appeals taken by aggrieved parties from actions by 
OHA judges on petitions for rehearing or reopening, and allowance of 
attorney fees, and from actions of BIA officials as provided in Sec.  
4.1(b)(2) of this subtitle.
    Day means a calendar day, unless otherwise stated.
    Decedent means a person who is deceased.
    Devise means a gift of property by will. Also, to give a gift of 
property by will.
    Devisee means a person or entity that receives property under a 
will.
    Estate means the trust or restricted land and trust personalty 
owned by the decedent at the time of death.
    Heir means any individual or entity eligible to receive trust or 
restricted land and trust personalty from a decedent in an intestate 
proceeding.
    Indian probate judge (IPJ) means a licensed attorney employed by 
OHA, other than an ALJ, to whom the Secretary has delegated authority 
to hear and decide Indian probate cases under 5 U.S.C. 556(b).
    Interested party means any of the following:
    (1) Any potential or actual heir;
    (2) Any devisee under a will;
    (3) Any person or entity asserting a claim against a deceased 
Indian's estate;
    (4) Any tribe having a statutory option to purchase the trust or 
restricted property interest of a decedent; or
    (5) Any co-owner exercising a purchase option.
    Intestate means the decedent died without a valid will.
    Judge means an ALJ or IPJ.
    LTRO means the Land Titles and Records Office within BIA.
    Probate means the legal process by which applicable tribal, 
Federal, or state law that affects the distribution of a decedent's 
estate is applied to:
    (1) Determine the heirs;
    (2) Determine the validity of wills and determine devisees;
    (3) Determine whether claims against the estate will be paid from 
trust funds; and
    (4) Order the transfer of any trust or restricted land or trust 
personalty to the heirs, devisees, or other persons or entities 
entitled by law to receive the funds or land.
    Restricted property means real property, the title to which is held 
by an Indian but which cannot be alienated or encumbered without the 
consent of the Secretary. For the purposes of probate proceedings, 
restricted property is treated as if it were trust property. Except as 
the law may provide otherwise, the term ``restricted property'' as used 
in this part does not include the restricted lands of the Five 
Civilized Tribes of Oklahoma or the Osage Nation.
    Trust property means real or personal property, or an interest 
therein, for which the United States holds the title to the property in 
trust for the benefit of an individual Indian or tribe.
    Will means a written document executed with the required 
formalities and intended to pass the testator's property upon death.
    18. Remove Sec. Sec.  4.202 through 4.308, along with their 
undesignated center headings.
    19. Revise Sec.  4.320 to read as follows:


Sec.  4.320  Who may appeal a judge's order on petition for rehearing 
or reopening or regarding purchase of interests in a deceased Indian's 
trust estate.

    Any interested party who is adversely affected has a right to 
appeal to the Board from an order of a judge on a petition for 
rehearing, a petition for reopening, or regarding purchase of interests 
in a deceased Indian's trust estate under part 30 of this subtitle.
    20. Redesignate Sec. Sec.  4.321 through 4.323 as Sec. Sec.  4.324 
through 4.326 and add new Sec. Sec.  4.321 through 4.323 to read as 
follows:


Sec.  4.321  How to appeal a judge's order on petition for rehearing or 
reopening or regarding purchase of interests in a deceased Indian's 
trust estate.

    (a) Within 30 days after the date of the judge's order, an 
appellant must file a written notice of appeal signed by the appellant, 
the appellant's attorney, or other qualified representative as provided 
in Sec.  1.3 of this subtitle, with the Board of Indian Appeals, Office 
of Hearings and Appeals, U.S. Department of the Interior, 801 North 
Quincy Street, Arlington, Virginia 22203.
    (b) A notice of appeal not timely filed must be dismissed for lack 
of jurisdiction.

[[Page 45228]]

Sec.  4.322  What an appeal must contain.

    (a) The appellant must file a statement of the errors of fact and 
law upon which the appeal is based. This statement may be included in 
either the notice of appeal or an opening brief.
    (b) The notice of appeal must include the names and addresses of 
parties served.


Sec.  4.323  Service of the notice of appeal.

    (a) The appellant must deliver or mail the original notice of 
appeal to the Board of Indian Appeals.
    (b) A copy must be served on the judge whose decision is being 
appealed as well as on all interested parties.
    (c) The notice of appeal filed with the Board must include a 
certification that service was made as required by this section.
    21. Revise redesignated Sec. Sec.  4.234 through 4.236 to read as 
follows:


Sec.  4.324  Record on appeal.

    (a) Upon receiving a copy of the notice of appeal, the judge whose 
decision is being appealed must notify the agency concerned to return 
the duplicate record filed under subpart J of part 30 of this subtitle 
to the designated LTRO.
    (b) The LTRO must conform the duplicate record to the original. 
Thereafter, the duplicate record will be available for inspection 
either at the LTRO or at the agency.
    (c) If a transcript of the hearing was not prepared, the judge will 
have a transcript prepared and forwarded to the Board within 30 days 
after receiving a copy of the notice of appeal.
    (d) The LTRO must forward the original record on appeal to the 
Board by certified mail.
    (e) Any party may file an objection to the record as constituted by 
the LTRO. The party must file his or her objection with the Board 
within 15 days after receiving the notice of docketing under Sec.  
4.325.


Sec.  4.325  Docketing the appeal.

    The Board will docket the appeal upon receiving the administrative 
record from the LTRO and will provide notice of the docketing to all 
interested parties as shown by the record on appeal. The docketing 
notice will specify the time within which briefs may be filed and will 
cite the procedural regulations governing the appeal.


Sec.  4.326  Disposition of the record.

    (a) After the Board makes a decision other than a remand, it must 
forward to the designated LTRO:
    (1) The record filed with the Board under Sec.  4.324(d); and
    (2) All documents added during the appeal proceedings, including 
any transcripts prepared because of the appeal and the Board's 
decision.
    (b) The LTRO must conform the duplicate record retained under Sec.  
4.324(b) to the original sent under paragraph (a) of this section and 
forward the conformed record to the agency concerned.
    22. Add part 30 to read as follows:

PART 30--INDIAN PROBATE HEARINGS PROCEDURES

Subpart A--Scope of Part; Definitions
Sec.
30.100 How do I use this part?
30.101 Will the Secretary probate all the land or assets in an 
estate?
30.102 What terms do I need to know?
Subpart B--Commencement of Probate Proceedings
30.110 When does OHA commence a probate case?
30.111 How does OHA commence a probate case?
30.112 What must a probate file contain?
30.113 What will OHA do if it receives an incomplete probate file?
30.114 What notice of the probate case will OHA send me?
30.115 Can I review the probate file?
Subpart C--Judicial Authority and Duties
30.120 What authority does the judge have in probate cases?
30.121 May a judge appoint a master in a probate case?
30.122 Is the judge required to accept the master's recommended 
decision?
30.123 Will the judge determine matters of status and nationality?
30.124 Can a judge find a person to be dead by reason of unexplained 
absence?
30.125 May a judge reopen a probate case to correct errors and 
omissions?
30.126 What happens if property was omitted from the inventory of 
the estate?
30.127 What happens if property was improperly included in the 
inventory of the estate?
30.128 What happens if an error in BIA's estate inventory is alleged 
during the probate proceeding?
Subpart D--Recusal of a Judge or ADM
30.130 When must a judge or attorney decision maker (ADM) recuse 
himself or herself from a probate case?
30.131 Where may a judge or ADM seek guidance on recusal?
30.132 May an interested party to a probate proceeding excuse a 
judge or ADM from hearing a case?
30.133 May an interested party to a probate proceeding request that 
a judge or ADM recuse himself or herself?
30.134 What must the judge or ADM consider when deciding whether to 
recuse himself or herself?
30.135 What action will the judge or ADM take after deciding to 
recuse himself or herself?
30.136 How will the case proceed after the judge or ADM's recusal?
30.137 Can I appeal the judge's or ADM's recusal decision?
Subpart E--Claims
30.140 When may I file a claim against the probate estate?
30.141 How must I file a creditor claim against the probate estate?
30.142 Will a judge authorize payment of a claim from the trust 
estate where the decedent's non-trust estate may be available?
30.143 Are there any categories of claims that may not be allowed?
30.144 May the judge authorize payment of the costs of administering 
the estate?
30.145 When can a judge reduce or disallow a claim?
30.146 What property is subject to claims?
30.147 What happens if there is not enough trust personalty to pay 
all the claims?
30.148 Will interest or penalties charged against claims after the 
date of death be paid?
Subpart F--Consolidation and Settlement Agreements
30.150 If the interested parties agree to settle matters among 
themselves, what does a judge do?
30.151 May the devisees or eligible heirs in a probate proceeding 
consolidate their interests?
30.152 May the parties to a settlement agreement or consolidation 
agreement waive valuation of trust property?
30.153 Is an order approving a consolidation agreement or settlement 
agreement a partition or sale transaction?
Subpart G--Purchase at Probate
30.160 What can be purchased at probate?
30.161 Who can purchase at probate?
30.162 Does property purchased at probate remain in trust or 
restricted status?
30.163 Is consent required for a purchase at probate?
30.164 What must I do to purchase at probate?
30.165 Who will OHA notify of a request to purchase at probate?
30.166 What will the notice of the request to purchase at probate 
include?
30.167 How does OHA decide whether to grant a request to purchase at 
probate?
30.168 What will the judge consider in determining the market value 
of an interest?
30.169 If I do not agree with the appraised market value, what can I 
do?
30.170 What may I do if I disagree with the judge's determination to 
approve a purchase at probate?
30.171 What happens when OHA grants a request to purchase at 
probate?
30.172 When must the successful bidder pay for the interest 
purchased?
30.173 What happens after the successful bidder submits payment?
30.174 What happens if the successful bidder does not pay within 30 
days?

[[Page 45229]]

Subpart H--Renunciation of Interest
30.180 May I give up an inherited interest in trust or restricted 
property or trust personalty?
30.181 How do I renounce an inherited interest?
30.182 Who may receive a renounced interest in trust or restricted 
land?
30.183 Who may receive a renounced interest of less than 5 percent 
in trust or restricted land?
30.184 Who may receive a renounced interest in trust personalty?
30.185 Can my designated recipient refuse to accept the interest?
30.186 Are renunciations that predate the American Indian Probate 
Reform Act of 2004 valid?
30.187 May I revoke my renunciation?
30.188 Does a renounced interest vest in the person who renounced 
it?
Subpart I--Summary Probate Proceedings
30.200 What is a summary probate proceeding?
30.201 What does a notice of a summary probate proceeding contain?
30.202 May I request that summary probate proceeding be replaced by 
a formal probate proceeding?
30.203 What must a summary probate decision contain?
30.204 How do I seek review of a summary probate proceeding?
30.205 What happens after I file a request for de novo review?
30.206 What happens if nobody files for de novo review?
Subpart J--Formal Probate Proceedings

Notice

30.210 How will I receive notice of the formal probate proceeding?
30.211 Will the notice be published in a newspaper?
30.212 Can I waive notice of the hearing, the time limits, or form 
of notice?
30.213 What notice to a tribe is required in a formal probate 
proceeding?
30.214 What must a notice of hearing contain?

Depositions, Discovery, and Prehearing Conference

30.215 How can I obtain documentation related to the probate 
proceeding?
30.216 How does an interested party obtain permission to take 
depositions?
30.217 How is a deposition taken?
30.218 How may the transcript of a deposition be used?
30.219 Who pays for the costs of taking a deposition?
30.220 How does an interested party obtain written interrogatories 
and admission of facts and documents?
30.221 May the judge limit the time, place, and scope of discovery?
30.222 What happens if a party fails to comply with discovery?
30.223 What is a prehearing conference?

Hearings

30.224 Can a judge compel a witness to appear and testify at a 
hearing?
30.225 Are probate hearings open to the public?
30.226 Must testimony in a probate proceeding be under oath or 
affirmation?
30.227 Is a record made of formal probate hearings?
30.228 What evidence is admissible at a probate hearing?
30.229 Is testimony required for self-proved wills, codicils, or 
revocations?
30.230 What if approval of the self-proved will, codicil, or 
revocation is contested?
30.231 Who pays witnesses'' costs?
30.232 May a judge schedule a supplemental hearing?
30.233 What will the official record of the probate case contain?
30.234 What will the judge do with the original record?
30.235 What happens if a hearing transcript has not been prepared?

Decisions in Formal Proceedings

30.236 What will the judge's decision in a formal probate proceeding 
contain?
30.237 What notice of the decision will the judge provide?
30.238 May I file a petition for rehearing if I disagree with the 
judge's decision in the formal probate hearing?
30.239 Does any distribution of the estate occur while a petition 
for rehearing is pending?
30.240 How will the judge address a petition for rehearing?
30.241 Can I submit another petition for rehearing?
30.242 When does the judge's decision on a petition for rehearing 
become final?
30.243 Can a closed probate case be reopened?
30.244 How will the judge address my petition for reopening?
30.245 What happens if the judge reopens the case?
30.246 When will the decision on reopening become final?
Subpart K--Miscellaneous Provisions
30.250 When does the anti-lapse provision apply?
30.251 What happens if an heir or devisee knowingly participates in 
the willful and unlawful killing of the decedent?
30.252 Can a judge allow fees for attorneys representing interested 
parties?
30.253 How must minors or other legal incompetents be represented?
30.254 What happens when a person dies without a valid will and has 
no heirs?
Subpart L--Tribal Purchase of Interests under Special Statutes
30.260 What land is subject to a tribal purchase option at probate?
30.261 What determinations with regard to a tribal purchase option 
will a judge make?
30.262 When will BIA furnish a valuation of a decedent's interests?
30.263 When is a final decision issued?
30.264 When may a tribe exercise its statutory option to purchase?
30.265 How does a tribe exercise its statutory option to purchase?
30.266 May a surviving spouse reserve a life estate when a tribe 
exercises its statutory option to purchase?
30.267 What if I disagree with the probate decision regarding tribal 
purchase option?
30.268 May I demand a hearing regarding the tribal purchase option 
decision?
30.269 What notice of the hearing will the judge provide?
30.270 How will the hearing be conducted?
30.271 How must the tribe pay for the interests it purchases?
30.272 What are the Superintendent's duties upon payment by the 
tribe?
30.273 What action will the judge take to record title?
30.274 What happens to income from land interests during pendency of 
the probate?

    Authority: 5 U.S.C. 301; 25 U.S.C. 9, 372-374, 410, 2201 et 
seq.; 43 U.S.C. 1201, 1457.

    Cross-reference: For regulations pertaining to the processing of 
Indian probate matters within the Bureau of Indian Affairs, see 25 
CFR part 15. For regulations pertaining to the appeal of decisions 
of the Probate Hearings Division, Office of Hearings and Appeals, to 
the Board of Indian Appeals, Office of Hearings and Appeals, see 43 
CFR part 4, subpart D. For regulations generally applicable to 
proceedings before the Hearings Divisions and Appeal Boards of the 
Office of Hearings and Appeals, see 43 CFR part 4, subpart B.

Subpart A--Scope of Part; Definitions


Sec.  30.100  How do I use this part?

    (a) The following table is a guide to the relevant contents of this 
part by subject matter.

------------------------------------------------------------------------
    For provisions relating to . . .              Consult . . .
------------------------------------------------------------------------
(1) All proceedings in part 30.........  Sec.   Sec.   30.100 through
                                          30.102
(2) Claims against probate estate......  Sec.  Sec.   30.140 through
                                          30.148.
(3) Commencement of probate............  Sec.  Sec.   30.110 through
                                          30.115.
(4) Consolidation of interests.........  Sec.  Sec.   30.150 through
                                          30.153.
(5) Formal probate proceedings before    Sec.  Sec.   30.210 through
 an administrative law judge or Indian    30.246.
 probate judge.
(6) Probate of trust estates of Indians  All sections except Sec.  Sec.
 who die possessed of trust property.      30.260 through 30.274.

[[Page 45230]]

 
(7) Purchases at probate...............  Sec.  Sec.   30.160 through
                                          30.177.
(8) Renunciation of interests..........  Sec.  Sec.   30.180 through
                                          30.191.
(9) Summary probate proceedings before   Sec.  Sec.   30.200 through
 an attorney decision maker.              30.206.
(10) Tribal purchase of certain          Sec.  Sec.   30.260 through
 property interests of decedents under    30.274.
 special laws applicable to particular
 tribes.
------------------------------------------------------------------------

    (b) Except as limited by the provisions of this part, the 
regulations in part 4, subparts A and B of this subtitle apply to these 
proceedings.


Sec.  30.101  Will the Secretary probate all the land or assets in an 
estate?

    (a) We will probate only the trust or restricted land or trust 
personalty in an estate.
    (b) We will not probate the following property:
    (1) Real or personal property other than trust or restricted land 
or trust personalty in an estate of a decedent;
    (2) Restricted land derived from allotments in the estates of 
members of the Five Civilized Tribes (Cherokee, Choctaw, Chickasaw, 
Creek and Seminole) in Oklahoma; and
    (3) Restricted interests derived from allotments made to Osage 
Indians in Oklahoma (Osage Nation) and Osage headright interests owned 
by Osage decedents.
    (c) We will probate that part of the estate of a deceased member of 
the Five Civilized Tribes or Osage Nation who owned a trust interest in 
land or a restricted interest in land derived from an individual Indian 
other than a member of the Five Civilized Tribes or Osage Nation.
    (d) Except as limited by the provisions in this part, the rules in 
subparts A and B of part 4 of this subtitle apply to all proceedings 
covered by this part.


Sec.  30.102  What terms do I need to know?

    As used in this part:
    Act means the Indian Land Consolidation Act and its amendments 
including Public Law 108-374, the American Indian Probate Reform Act of 
2004 (AIPRA).
    Administrative law judge (ALJ) means an administrative law judge 
with OHA appointed under the Administrative Procedure Act, 5 U.S.C. 
3105.
    Agency means the Bureau of Indian Affairs (BIA) agency office, or 
any other designated office in BIA, having jurisdiction over trust or 
restricted land. This term also means any office of a tribe that has 
entered into a contract or compact to fulfill the probate function 
under 25 U.S.C. 450f or 458cc.
    Attorney decision maker (ADM) means a licensed attorney employed by 
OHA who conducts a summary proceeding and renders a decision that is 
subject to de novo review by an administrative law judge or Indian 
probate judge.
    BIA means the Bureau of Indian Affairs within the Department.
    BLM means the Bureau of Land Management within the Department.
    Board means the Interior Board of Indian Appeals (IBIA) within OHA, 
authorized by the Secretary to hear, consider, and determine finally 
for the Department appeals taken by aggrieved parties from actions by 
OHA judges on petitions for rehearing or reopening, and allowance of 
attorney fees, and from actions of BIA officials as provided in Sec.  
4.1(b)(2) of this subtitle.
    Chief ALJ means the Chief Administrative Law Judge, Probate 
Hearings Division, OHA.
    Child includes any adopted child.
    Codicil means a supplement or addition to a will, executed with the 
same formalities as a will. It may explain, modify, add to, or revoke 
provisions in an existing will.
    Consolidation agreement means a written agreement under the 
provisions of 25 U.S.C. 2206(e) or 25 U.S.C. 2206(j)(9), by which a 
decedent's heirs and devisees consolidate interests in trust or 
restricted land, entered during the probate process, approved by the 
judge, and implemented by the probate order.
    Creditor means any individual or entity that has a claim for 
payment from a decedent's estate.
    Day means a calendar day, unless otherwise stated.
    Decedent means a person who is deceased.
    Decision or order (or decision and order) means a written document 
issued by a judge making determinations as to heirs, wills, devisees, 
and the claims of creditors, and ordering distribution of trust or 
restricted land or trust personalty. Decision or order also means the 
decision issued by an attorney decision maker in a summary probate 
proceeding.
    De novo review means a process in which an administrative law judge 
or Indian probate judge, without regard to the decision previously 
issued in the case, will:
    (1) Review all the relevant facts and issues in a probate case;
    (2) Reconsider the evidence introduced at a previous hearing;
    (3) Conduct a formal hearing as necessary or appropriate; and
    (4) Issue a decision.
    Department or DOI means the Department of the Interior.
    Devise means a gift of property by will. Also, to give a gift of 
property by will.
    Devisee means a person or entity that receives property under a 
will.
    Eligible heir means, for the purposes of the Act, 25 U.S.C. 2206, 
any of a decedent's children, grandchildren, great grandchildren, full 
siblings, half siblings by blood, and parents who are:
    (1) Indian;
    (2) Lineal descendents within two degrees of consanguinity of an 
Indian; or
    (3) Owners of a trust or restricted interest in a parcel of land 
for purposes of inheriting--by descent, renunciation, or consolidation 
agreement--another trust or restricted interest in such a parcel from 
the decedent.
    Estate means the trust or restricted land and trust personalty 
owned by the decedent at the time of death.
    Formal probate proceeding means a trial-type proceeding, conducted 
by a judge, in which evidence is obtained, through testimony of 
witnesses and the receipt of relevant documents.
    Heir means any individual or entity eligible to receive trust or 
restricted land and trust personalty from a decedent in an intestate 
proceeding.
    I means, in question headings, an heir, a devisee, an owner of 
trust or restricted land or trust personalty, or a creditor.
    IIM account means funds held in trust in an individual Indian money 
(IIM) account by OST or by a tribe performing this function under a 
contract or compact. These funds are also referred to as ``trust 
personalty.''
    Indian means, for the purposes of the Act, 25 U.S.C. 2206:
    (1) Any person who is a member of a federally recognized Indian 
tribe, is eligible to become a member of any Indian tribe, or is an 
owner (as of October 27, 2004) of a trust or restricted interest in 
land;
    (2) Any person meeting the definition of Indian under 25 U.S.C. 
479; and

[[Page 45231]]

    (3) With respect to the inheritance and ownership of trust or 
restricted land in the State of California under 25 U.S.C. 2206, any 
person described in paragraph (1) or (2) of this definition or any 
person who owns a trust or restricted interest in a parcel of land in 
that State.
    Indian probate judge (IPJ) means a licensed attorney employed by 
OHA, other than an ALJ, to whom the Secretary has delegated authority 
to hear and decide Indian probate cases under 5 U.S.C. 556(b).
    Interested party means any of the following:
    (1) Any potential or actual heir;
    (2) Any devisee under a will;
    (3) Any person or entity asserting a claim against a deceased 
Indian's estate;
    (4) Any tribe having a statutory option to purchase the trust or 
restricted property interest of a decedent; or
    (5) Any co-owner exercising a purchase option.
    Intestate means the decedent died without a valid will.
    Judge means an ALJ or IPJ.
    LTRO means the Land Titles and Records Office within BIA.
    Minor means an individual who has not reached the age of majority 
as defined by the applicable law.
    OHA means the Office of Hearings and Appeals within the Department.
    OST means the Office of the Special Trustee for American Indians 
within the Department.
    Per stirpes means by right of representation, dividing an estate 
into equal shares based on the number of decedent's surviving children 
and predeceased children who left issue and who survive the decedent. 
The share of a predeceased child of the decedent is divided equally 
among the predeceased child's surviving children.
    Probate means the legal process by which applicable tribal, 
Federal, or State law that affects the distribution of a decedent's 
estate is applied to:
    (1) Determine the heirs;
    (2) Determine the validity of wills and determine devisees;
    (3) Determine whether claims against the estate will be paid from 
trust funds; and
    (4) Order the transfer of any trust or restricted land or trust 
personalty to the heirs, devisees, or other persons or entities 
entitled by law to receive the funds or land.
    Probate staff means a DOI or tribal employee who is trained in 
Indian probate matters and who is responsible for preparing the probate 
file.
    Purchase option at probate refers to the process by which eligible 
purchasers can purchase a decedent's interest during the probate 
proceeding.
    Restricted property means real property, the title to which is held 
by an Indian but which cannot be alienated or encumbered without the 
consent of the Secretary. For the purposes of probate proceedings, 
restricted property is treated as if it were trust property. Except as 
the law may provide otherwise, the term ``restricted property'' as used 
in this part does not include the restricted lands of the Five 
Civilized Tribes of Oklahoma or the Osage Nation.
    Secretary means the Secretary of the Interior or an authorized 
representative. The authorized representative of the Secretary for the 
performance of probate functions is BIA. The authorized representative 
of the Secretary for adjudication of probate is OHA.
    Summary probate proceeding means the consideration of a probate 
file without a hearing and on the basis of the probate file received 
from the BIA. A summary probate proceeding may be conducted if the 
estate involves only trust personalty and does not exceed the amount of 
$5,000 on the date of the death of the decedent.
    Superintendent means a BIA Superintendent or other BIA official, 
including a field representative or one holding equivalent authority.
    Testate means that the decedent executed a valid will.
    Testator means a person who has executed a valid will.
    Trust personalty means all funds and securities of any kind that 
are held in trust in an IIM account or otherwise supervised by the 
Secretary.
    Trust property means real or personal property, or an interest 
therein, for which the United States holds the title to the property in 
trust for the benefit of an individual Indian or tribe.
    We means the Secretary of the Interior or an authorized 
representative as defined in this section.
    Will means a written document executed with the required 
formalities and intended to pass the testator's property upon death.
    You means, in regulatory text, an heir or devisee or owner of trust 
or restricted land or trust personalty, unless a specific section 
defines ``you'' to have another meaning.

Subpart B--Commencement of Probate Proceedings


Sec.  30.110  When does OHA commence a probate case?

    OHA commences probate of a trust estate when OHA receives a probate 
file from BIA.


Sec.  30.111  How does OHA commence a probate case?

    OHA commences a probate case by confirming the case number assigned 
by BIA, assigning the case to a judge or ADM, and designating the case 
as a summary probate proceeding or formal probate proceeding.


Sec.  30.112  What must a probate file contain?

    A probate file must contain the documents and information described 
in 25 CFR 15.302 and any other relevant information.


Sec.  30.113  What will OHA do if it receives an incomplete probate 
file?

    If OHA determines that the probate file it received from BIA is not 
complete and the probate file is not accompanied by the certification 
described in 25 CFR 15.303, OHA may:
    (a) Request the missing information from BIA;
    (b) Dismiss the case and return the probate file to BIA for further 
processing;
    (c) Issue a subpoena or request for production as appropriate to 
obtain the missing information; or
    (d) Proceed with a hearing in the case.


Sec.  30.114  What notice of the probate case will OHA send me?

    OHA will send a notice of hearing to potential heirs, devisees, and 
creditors if the case is designated as a formal probate proceeding. In 
a case designated as a summary probate proceeding, OHA will send 
potential heirs and devisees a notice of the designation. OHA also will 
inform potential heirs and devisees that a formal probate proceeding 
may be requested instead of the summary process.


Sec.  30.115  Can I review the probate file?

    After OHA receives the case, any interested party may examine the 
probate file during regular business hours and make copies upon payment 
of the reasonable cost of copying.

Subpart C--Judicial Authority and Duties


Sec.  30.120  What authority does the judge have in probate cases?

    A judge has the general authority to:
    (a) Determine the manner, location, and time of hearings conducted 
under this part, and otherwise to administer the cases assigned to the 
judge;
    (b) Determine the heirs of any Indian or eligible heir who dies 
intestate possessed of trust or restricted property;
    (c) Approve or disapprove a will disposing of trust or restricted 
property;
    (d) Accept or reject any full or partial renunciation of interest 
in both testate and intestate proceedings;

[[Page 45232]]

    (e) Approve or disapprove any consolidation agreement;
    (f) Conduct sales at probate and provide for the distribution of 
interests in the probate decision and order;
    (g) Allow or disallow claims by creditors;
    (h) Order the distribution of trust property to heirs and devisees 
and determine and reserve the share or shares that any potential heir 
or devisee who is missing but not found to be deceased by a court of 
competent jurisdiction is entitled;
    (i) Determine whether a tribe has jurisdiction over the trust or 
restricted property and, if the tribe has jurisdiction, the right of 
the tribe to take a decedent's trust or restricted property under 25 
U.S.C. 2206(a)(2)(B)(v), 2206(a)(2)(D)(iii)(V), or other applicable 
laws;
    (j) Issue subpoenas for the appearance of persons, the testimony of 
witnesses, and the production of documents at hearings or depositions, 
under 25 U.S.C. 374, upon the judge's initiative or, within the judge's 
discretion, upon the request of an interested party;
    (k) Administer oaths and affirmations;
    (l) Order the taking of depositions and determine the scope and use 
of deposition testimony;
    (m) Order the production of documents and records and determine the 
scope and use of the documents and records;
    (n) Rule on matters involving interrogatories and any other 
requests for discovery, including admissions;
    (o) Grant or deny stays, waivers, and extensions;
    (p) Hear, consider, and rule on motions, requests, and objections;
    (q) Rule on the admissibility of evidence;
    (r) Permit the cross examination of witnesses;
    (s) Appoint a guardian ad litem for any interested party who is a 
minor or found by the judge to be not competent to represent his or her 
own interests;
    (t) Inquire of persons and agencies in order to complete the record 
in probate proceedings and to protect the integrity of the record;
    (u) Hear and consider the claims of creditors against the estate, 
allowing or dismissing claims based on the evidence and the law;
    (v) Provide information to interested parties about the right to 
appeal and concerning consolidation agreements, renunciations of 
interest, and purchases at probate as necessary;
    (w) Administer the probate case and regulate the course of any 
hearing and the conduct of witnesses, interested parties, attorneys, 
and attendees at a hearing;
    (x) Determine and impose sanctions and penalties allowed by law; 
and
    (y) Take such action as necessary to preserve the trust assets of 
an estate.


Sec.  30.121  May a judge appoint a master in a probate case?

    (a) In the exercise of any authority under this part, a judge may 
appoint a master:
    (1) To conduct hearings on the record and hear evidence as to all 
or specific issues in probate cases as assigned by the judge;
    (2) To make written reports including findings of fact and 
conclusions of law; and
    (3) To propose recommended decisions to the judge.
    (b) Upon filing, the master's report and recommended decision will 
be mailed or delivered to the interested parties.


Sec.  30.122  Is the judge required to accept the master's recommended 
decision?

    No, the judge is not required to accept the master's recommended 
decision.
    (a) An interested party adversely affected by the report and 
recommended decision may file objections within 30 days of the mailing 
or delivery of the report. An objecting party must simultaneously mail 
or deliver copies of the objections to all other interested parties.
    (b) Any other interested party may file responses to the objections 
within 15 days of the mailing or delivery of the objections. A 
responding party must simultaneously mail or deliver a copy of his or 
her responses to the objecting party.
    (c) The judge will review the record of the proceedings heard by 
the master, including any objections and responses filed, and determine 
whether the master's report and recommended decision is supported by 
the evidence of record.
    (1) If the judge approves the report and finds that the recommended 
decision is supported by the evidence of record and is consistent with 
applicable law, the judge will enter an order adopting the recommended 
decision.
    (2) If the judge does not approve the report or finds that the 
recommended decision is not supported by the evidence of record, the 
judge may remand the case to the master for further proceedings 
consistent with instructions in the remand order, or the judge may hear 
the case de novo and enter a decision.
    (3) If the judge finds that the master's findings of fact are 
supported by the evidence in the record but the conclusions of law or 
the recommended decision is not consistent with applicable law, the 
judge will issue an order adopting the findings of fact, making 
conclusions of law, and entering a decision.


Sec.  30.123  Will the judge determine matters of status and 
nationality?

    (a) The judge in a probate proceeding will determine:
    (1) The status of eligible heirs or devisees as Indians;
    (2) The nationality or citizenship of eligible heirs or devisees; 
and
    (3) Whether any of the Indian heirs or devisees with U.S. 
citizenship are individuals for whom the supervision and trusteeship of 
the United States is terminated.
    (b) A judge may make determinations under this section in a current 
probate proceeding or in a completed probate case after a reopening 
without regard to a time limit.


Sec.  30.124  Can a judge find a person to be dead by reason of 
unexplained absence?

    (a) A judge may make a finding that an heir, devisee, or a person 
for whom a probate case has been opened is dead, by reason of extended 
unexplained absence, and include the date of death in the finding. The 
judge will make a finding of death only upon clear and convincing 
evidence.
    (b) In any proceeding to determine whether a person is dead, the 
following rebuttable presumptions apply:
    (1) If credible evidence establishes that the absent person has had 
contact with any person or entity during the 6-year period preceding 
the hearing, the absent person will be presumed alive; and
    (2) If clear and convincing evidence establishes that none of the 
persons or entities with whom the absent person was known to have had 
regular contact previously has had any such contact during the 6-year 
period preceding the hearing, the absent person will be presumed dead.


Sec.  30.125  May a judge reopen a probate case to correct errors and 
omissions?

    (a) Upon the written request of an interested party, or on the 
judge's own motion, at any time, a judge has the specific authority to 
reopen a probate case to:
    (1) Determine the correct identity of the original allottee, or any 
heir or devisee;
    (2) Determine whether different persons received the same 
allotment;
    (3) Decide whether trust patents covering allotments of land were 
issued incorrectly or to a non-existent person;
    (4) Determine whether more than one allotment of land had been 
issued to the

[[Page 45233]]

same person under different names and numbers or through other errors 
in identification; or
    (5) Address any other error deemed by the judge sufficient to order 
the case to be reopened.
    (b) The judge will notify interested parties if a probate case is 
reopened and will refer the case for proceedings in accordance with 
this part.


Sec.  30.126  What happens if property was omitted from the inventory 
of the estate?

    (a) This section applies when, after issuance of a decision and 
order in a formal probate proceeding, it is found that trust or 
restricted property or interest therein belonging to a decedent has not 
been included in the inventory.
    (1) The inventory can be modified to include the omitted property 
for distribution under the original decision.
    (2) Modification to include the omitted property in the decedent's 
inventory may be made either administratively by BIA or by a 
modification order by a judge.
    (3) Copies of all modifications must be furnished to the agency and 
to all those persons who share in the estate.
    (b) When the property to be included takes a different line of 
descent from that shown in the original decision, BIA must notify the 
judge. The judge will:
    (1) Conduct a hearing, if necessary, and issue a decision; and
    (2) File a record of the proceeding with the designated LTRO.


Sec.  30.127  What happens if property was improperly included in the 
inventory of the estate?

    (a) When, after a decision and order in a formal probate 
proceeding, it is found that property has been improperly included in 
the inventory of an estate, the inventory must be modified to eliminate 
this property. A petition for modification may be filed by the 
superintendent of the agency where the property is located, or by any 
interested party.
    (b) A judge will review the merits of the petition and record of 
the title from the LTRO upon which the modification is to be based and 
enter an appropriate decision. If the decision is entered without a 
formal hearing, the judge must give notice of the action to all parties 
whose rights are adversely affected, allowing them 30 days in which to 
show cause why the decision should not then become final.
    (c) Where appropriate, the judge may conduct a formal hearing at 
any stage of the modification proceeding. The hearing must be scheduled 
and conducted in accordance with the rules of this part. The judge will 
enter a final decision based on his or her findings, modifying or 
refusing to modify the property inventory. The judge's decision will 
become final at the end of 30 days from the date it is mailed, unless 
an aggrieved party files a notice of appeal within that period. Notice 
of entry of the decision must be given in accordance with this part.
    (d) A party aggrieved by the judge's decision may appeal it to the 
Board.
    (e) BIA must lodge the record of all proceedings with the 
designated LTRO.


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

    (a) This section applies when, during a probate proceeding, an 
interested party alleges that the estate inventory prepared by BIA is 
inaccurate and should be corrected. Alleged inaccuracies may include, 
but are not limited to, the following:
    (1) Trust property interests should be removed from the inventory 
because the decedent executed a gift deed or a gift deed application 
during the decedent's lifetime, and BIA had not, as of the time of 
death, determined whether to approve the gift deed or gift deed 
application;
    (2) Trust property interests should be removed from the inventory 
because a deed through which the decedent acquired the property is 
invalid;
    (3) Trust property interests should be added to the inventory 
because the decedent attempted to acquire additional trust property 
interests during the decedent's lifetime, and BIA had not, as of the 
time of death, determined whether to approve the acquisition; and
    (4) Trust property interests included in the inventory are 
improperly described.
    (b) When an error in the estate inventory is alleged, the OHA 
deciding official will refer the matter to BIA for resolution in 
accordance with procedures found at 25 CFR parts 150 (Land Records and 
Title Documents), 151 (Land Acquisitions), and 152 (Issuance of Patents 
in Fee, Certificates of Competency, Removal of Restrictions, and Sale 
of Certain Indian Lands), together with the appeal procedures found at 
25 CFR part 2 (Appeals from Administrative Actions).
    (1) If a final determination resolving the inventory challenge is 
made before a final decision is issued in the probate proceeding, the 
probate decision will reflect the inventory determination.
    (2) If a final determination resolving the inventory challenge is 
not made before a final decision is issued in the probate proceeding, 
the final probate decision will include a reference to the pending 
inventory challenge and note that the probate decision is subject to 
administrative modification once the inventory dispute has been 
resolved.

Subpart D--Recusal of a Judge or ADM


Sec.  30.130  When must a judge or attorney decision maker (ADM) recuse 
himself or herself from a probate case?

    A judge or attorney decision maker (ADM) must recuse himself or 
herself from a probate case in which the judge or ADM determines:
    (a) That the judge or ADM has a conflict of interest; or
    (b) That the judge's or ADM's impartiality may reasonably be 
questioned under recognized canons of judicial ethics.


Sec.  30.131  Where may a judge or ADM seek guidance on recusal?

    A judge or ADM may consult and seek guidance for the determinations 
listed in Sec.  30.130 from:
    (a) The code of judicial conduct for any State in which the judge 
or ADM is a member of the bar; or
    (b) The code of judicial conduct for the Federal courts.


Sec.  30.132  May an interested party to a probate proceeding excuse a 
judge or ADM from hearing a case?

    No. No party to a probate proceeding may excuse a judge or ADM from 
hearing a case.


Sec.  30.133  May an interested party to a probate proceeding request 
that a judge or ADM recuse himself or herself?

    Yes. If you are an interested party to a probate proceeding, you 
may request that a judge or ADM recuse himself or herself by filing a 
written motion for recusal.
    (a) The motion for consideration of recusal must state, by 
affidavit or verified motion, the facts and circumstances that you ask 
the judge or ADM to consider.
    (b) You must file a motion for recusal before the judge or ADM 
files the decision and order in a probate proceeding.
    (c) A motion for recusal may not delay proceedings unless you also 
request, and the judge or ADM grants, an extension of time for the 
hearing of the motion.


Sec.  30.134  What must the judge or ADM consider when deciding whether 
to recuse himself or herself?

    The grounds for which a judge or ADM must consider recusal include, 
without limitation:

[[Page 45234]]

    (a) Personal bias or prejudice concerning an interested party or an 
interested party's attorney;
    (b) Personal knowledge of disputed evidentiary facts obtained 
before the filing of the probate case or obtained ex parte during the 
pendency of the probate proceeding;
    (c) Prior service as an attorney concerning a matter or for an 
interested party in the current probate proceeding;
    (d) Service as a witness, conservator, guardian, or guardian ad 
litem in a case involving an interested party; and
    (e) Economic interest in the outcome of the case by the judge or 
ADM, the spouse of the judge or ADM, or a person within the third 
degree of relationship to the judge or ADM or the judge's or ADM's 
spouse.


Sec.  30.135  What action will the judge or ADM take after deciding to 
recuse himself or herself?

    If the judge or ADM decides to recuse himself or herself, the judge 
or ADM must immediately file a certificate of recusal in the file of 
the affected case and notify the Chief ALJ, all interested parties, any 
counsel in the case, and the affected BIA agencies. The judge or ADM is 
not required to state the reason for recusal.


Sec.  30.136  How will the case proceed after the judge or ADM's 
recusal?

    Within 30 days of the filing of the certificate of recusal, the 
Chief ALJ will appoint another judge or ADM to hear the case, and will 
notify the parties identified in Sec.  30.135 of the appointment.


Sec.  30.137  Can I appeal the judge's or ADM's recusal decision?

    If you have filed a motion seeking recusal of a judge or ADM under 
Sec.  30.133 and the judge or ADM denies the motion, you may seek 
immediate review of the denial by filing a request with the Chief ALJ 
under Sec.  4.27(c)(3) of this subtitle.

Subpart E--Claims


Sec.  30.140  When may I file a claim against the probate estate?

    (a) A claim by a person or entity as a creditor against the estate 
of an Indian may be filed with BIA before BIA transfers the probate 
file to OHA.
    (b) Claims by a creditor also may be filed through OHA with the 
judge assigned to the case.
    (1) Claims filed by a creditor through OHA must be filed before the 
conclusion of the first hearing.
    (2) Claims that are not filed by the conclusion of the first 
hearing will be barred forever.


Sec.  30.141  How must I file a creditor claim against the probate 
estate?

    (a) A creditor must submit an affidavit under oath setting forth 
the debt alleged and an itemized statement of the debt, including 
copies of any documents necessary to prove the indebtedness, such as 
signed contracts, signed notes, mortgages, account records, billing 
records, and journal entries.
    (b) The creditor's affidavit also must state whether:
    (1) Parties other than the decedent are responsible for any portion 
of the debt alleged;
    (2) Any known or claimed offsets to the alleged debt exist; and
    (3) The creditor or anyone on behalf of the creditor has filed a 
claim or sought reimbursement against the decedent's non-trust or 
restricted property in any other judicial or quasi-judicial proceeding.
    (c) The itemized statement must include:
    (1) The date and amount of the original debt;
    (2) The dates, amounts, and identity of the payor for any payments 
made;
    (3) The dates, amounts, product or service, and identity of any 
person making charges on the account;
    (4) The balance remaining on the debt on the date of the decedent's 
death; and
    (5) Any notification by the decedent that the amount claimed was 
disputed by the decedent.


Sec.  30.142  Will a judge authorize payment of a claim from the trust 
estate where the decedent's non-trust estate may be available?

    No claim will be paid from trust or restricted property if the 
judge determines that the decedent's non-trust estate may be available 
to pay the claim.


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

    (a) Claims for care may not be allowed except upon clear and 
convincing evidence that the care was given on a promise of 
compensation and that compensation was expected.
    (b) A claim cannot be allowed if it is:
    (1) Based on a written or oral contract, express or implied; and
    (2) The claim has existed for such a period as to be barred by the 
applicable tribal or state laws at date of decedent's death.
    (c) Claims sounding in tort not reduced to judgment in a court of 
competent jurisdiction, and other unliquidated claims not properly 
within the jurisdiction of OHA, are barred.
    (d) Claims of a State or any of its political subdivisions, are 
barred if they relate to:
    (1) Payments for general assistance, welfare or similar assistance;
    (2) Social security; or
    (3) Claims for old-age assistance.


Sec.  30.144  May the judge authorize payment of the costs of 
administering the estate?

    Upon motion of the superintendent or an interested party, the judge 
may authorize payment of the costs of administering the estate as they 
arise and before the allowance of any claims against the estate.


Sec.  30.145  When can a judge reduce or disallow a claim?

    The judge has discretion to decide that part or all of an otherwise 
valid claim is unreasonable, reduce the claim to a reasonable amount, 
or disallow the claim in its entirety. If a claim is reduced, the judge 
will order payment only of the reduced amount.


Sec.  30.146  What property is subject to claims?

    (a) Except as prohibited by law, all trust personalty of a decedent 
on hand or accrued at time of death, including bonds, unpaid judgments, 
and accounts receivable, may be used for the payment of claims, whether 
the right, title, or interest that is taken by an heir or devisee 
remains in trust or passes out of trust.
    (b) Trust personalty that accrues after the date of the decedent's 
death from trust or restricted property is not available for payment of 
claims against the estate.


Sec.  30.147  What happens if there is not enough trust personalty to 
pay all the claims?

    If, at the date of death, there is not enough trust personalty to 
pay all claims, the claims may be ordered paid on a pro rata basis or 
disallowed in their entirety. The unpaid balance of any claims will not 
be enforceable against the estate after the estate is closed.


Sec.  30.148  Will interest or penalties charged against claims after 
the date of death be paid?

    Interest or penalties charged after the date of death will not be 
paid.

Subpart F--Consolidation and Settlement Agreements


Sec.  30.150  If the interested parties agree to settle matters among 
themselves, what does a judge do?

    (a) A judge may approve a settlement agreement among interested 
parties resolving any issue in the probate proceeding if the judge 
finds that:
    (1) All parties to the agreement are advised as to all material 
facts;

[[Page 45235]]

    (2) All parties to the agreement understand the effect of the 
agreement on their rights; and
    (3) It is in the best interest of the parties to settle.
    (b) In considering the proposed settlement agreement, the judge may 
consider evidence of the respective values of specific items of 
property and all encumbrances.
    (c) If the judge approves the settlement agreement under paragraph 
(a) of this section, the judge will issue an order approving the 
settlement agreement and distributing the estate in accordance with the 
agreement.


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

    The devisees or eligible heirs may consolidate interests under 25 
U.S.C. 2206(e) in trust property already owned by the heirs and under 
25 U.S.C. 2206(j)(9) in property from the inventory of the decedent's 
estate. This does not include interests in Alaska.
    (a) A judge may approve a written agreement among devisees or 
eligible heirs in a probate case to consolidate the interests of a 
decedent's devisees or eligible heirs.
    (1) To accomplish consolidation, the agreement may include 
conveyances among decedent's devisees or eligible heirs of:
    (i) Interests in trust or restricted land in the decedent's trust 
inventory; and
    (ii) Interests of the devisees or eligible heirs in trust or 
restricted land which are not part of the decedent's trust inventory.
    (2) The parties must offer evidence sufficient to satisfy the judge 
of the percentage of ownership held and offered by a party. They may 
offer evidence of the value of each interest in trust or restricted 
land included in the agreement if the interest is not part of the 
decedent's estate.
    (3) If the decedent's devisees or eligible heirs enter into an 
agreement, the parties to the agreement are not required to comply with 
the rules and requirements of the Secretary otherwise applicable to 
conveyances by deed.
    (b) If the judge approves an agreement, the judge will issue an 
order distributing the estate in accordance with the agreement.
    (c) In order to approve an agreement, the judge must find that:
    (1) The agreement to consolidate is voluntary;
    (2) All parties to the agreement know the material facts;
    (3) All parties to the agreement understand the effect of the 
agreement on their rights; and
    (4) The agreement accomplishes consolidation.
    (d) An interest included in an approved agreement may not be 
purchased at probate without consent of the owner of the consolidated 
interest.


Sec.  30.152  May the parties to a settlement agreement or 
consolidation agreement waive valuation of trust property?

    The parties to a settlement agreement or to a consolidation 
agreement may waive valuation of trust property otherwise specified by 
regulation or the Secretary's rules and requirements. If the parties 
waive valuation, the waiver must be included in the written agreement.


Sec.  30.153  Is an order approving a consolidation agreement or 
settlement agreement considered a partition or sale transaction?

    An order issued by a judge approving a consolidation or settlement 
agreement will not be interpreted as a partition or sale transaction 
within the provisions of 25 CFR part 152.

Subpart G--Purchase at Probate


Sec.  30.160  What can be purchased at probate?

    An eligible purchaser may purchase, during the probate of a trust 
or restricted estate, all or part of the estate of a person who died 
after June 20, 2006.
    (a) Any interest in trust or restricted property, including a life 
estate that is part of the estate, may be purchased at probate with the 
following exceptions:
    (1) If an interest is included in an approved consolidation 
agreement, that interest may not be purchased at probate without 
consent of the owner; and
    (2) An interest that a devisee will receive under a valid will 
cannot be purchased without the consent of the devisee.
    (b) A purchase option must be exercised before an order is entered 
and be included as part of the order in the estate.


Sec.  30.161  Who can purchase at probate?

    An eligible purchaser is:
    (a) Any devisee or eligible heir who is taking an interest in the 
same parcel of land in the probate proceeding;
    (b) Any person who owns an undivided trust or restricted interest 
in the same parcel of land;
    (c) The Indian tribe with jurisdiction over the parcel containing 
the interest; or
    (d) The Secretary on behalf of the tribe.


Sec.  30.162  Does property purchased at probate remain in trust or 
restricted status?

    The property interests purchased at probate must remain in trust or 
restricted status.


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

    (a) The heir's consent is not required if:
    (1) The interest the heir will receive in the parcel, subject to 
the probate proceeding, is less than 5 percent of the entire undivided 
ownership interest in the parcel; and
    (2) The heir was not residing on the parcel on the date of the 
decedent's death.
    (b) The heir's consent is required if:
    (1) The interest the heir will receive in the parcel, subject to 
the probate proceeding, is 5 percent or more of the entire undivided 
ownership interest in the parcel; or
    (2) The interest the heir will receive is less than 5 percent of 
the entire undivided ownership interest in the parcel and the heir was 
residing on the parcel on the date of the decedent's death.


Sec.  30.164  What must I do to purchase at probate?

    Any eligible purchaser must submit a written request to OHA to 
purchase at probate before the decision and order issues.


Sec.  30.165  Who will OHA notify of a request to purchase at probate?

    OHA will provide notice of a request to purchase at probate to:
    (a) The heirs or devisees and the Indian tribe with jurisdiction 
over the interest, by first class mail;
    (b) The BIA agency with jurisdiction over the interest, by first 
class mail;
    (c) All parties who have submitted a written request for purchase, 
by first class mail; and
    (d) All other eligible purchasers, by posting written notice in at 
least five conspicuous places in the vicinity of the place of hearing 
and one conspicuous place at the agency with jurisdiction over the 
parcel.


Sec.  30.166  What will the notice of the request to purchase at 
probate include?

    The notice posted by OHA will include:
    (a) The manner of sale;
    (b) The date, time, and place of the sale;
    (c) A description of the interest to be sold; and
    (d) The appraised market value of the parcel obtained from BIA with 
the probate file containing the interest to be sold and an estimate of 
the market value allocated to the interest being sold.

[[Page 45236]]

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

    OHA will sell the interest to the eligible purchaser submitting the 
highest bid at not less than the market value of the interest.


Sec.  30.168  What will the judge consider in determining the market 
value of an interest?

    (a) An appraisal of the market value of the interest to be sold at 
probate must be based upon an appraisal which gives appropriate 
consideration to the fractionated ownership interest in the parcel. The 
appraisal must meet the standards in the Uniform Standards for 
Professional Appraisal Practice (USPAP).
    (b) The judge will use the appraised market value of the interest 
being sold and determine the allocation of proceeds of sale among the 
heirs based upon the fractional ownership interests in the parcel.
    (c) In allocating the proceeds of the sale of an interest subject 
to a life estate, the allocation among the holder of the life estate 
and the holders of any remainder interests, the judge must use the 
ratios in 25 CFR part 179.
    (d) The judge will order the distribution of the sale proceeds in 
accordance with the determination made in paragraph (b) of this 
section.


Sec.  30.169  If I do not agree with the appraised market value, what 
can I do?

    (a) If you are a potential purchaser or the heir whose interest is 
to be sold and you disagree with the appraised market value, you may:
    (1) File a written objection with OHA within 30 days from the 
mailing of notice provided under Sec.  30.167, stating the reasons for 
the objection; and
    (2) Within 15 days after filing a written objection, submit any 
supporting documentation showing why the market value should be 
modified.
    (b) The judge will consider any objections, make a determination of 
the market value and whether to approve the purchase under Sec.  
30.169, and notify all interested parties.


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

    (a) If you are an interested party adversely affected by the 
judge's determination under Sec.  30.171(b), you may file a written 
objection with the judge within 15 days after the mailing of the 
determination under Sec.  30.171(b).
    (1) The written objection must state the reasons for the objection 
and request interlocutory appeal of the determination to the Board.
    (2) You must furnish a copy of the written objection to the other 
interested parties and the agencies, stating that you have done so in 
your written objection.
    (b) If the objection is timely filed, the judge must forward a 
certified copy of the complete record in the case to the Board for 
review of the determination. The judge will not issue the decision in 
the probate case until the Board has issued its decision on 
interlocutory review of the determination.
    (c) If the objection is not timely filed, the judge will issue an 
order denying the request for review as untimely and will furnish 
copies of the order to the interested parties and the agencies. If you 
disagree with the decision of the judge as to whether your objection 
was timely filed, you may file a petition for rehearing under Sec.  
30.238 after the judge issues a decision under Sec.  30.236.


Sec.  30.171  What happens when OHA grants a request to purchase at 
probate?

    When OHA grants a request to purchase at probate, it will:
    (a) Notify the successful bidder by first class mail; and
    (b) Notify OST, the agency that prepared the probate file, and the 
agency having jurisdiction over the interest sold, including the 
following information:
    (1) The estate involved;
    (2) The parcel and interest sold;
    (3) The identity of the successful bidder; and
    (4) The amount of the bid.


Sec.  30.172  When must the successful bidder pay for the interest 
purchased?

    The successful bidder must pay to OST, by cashier's check or money 
order via the lockbox, or electronic funds transfer, the full amount of 
the purchase price within 30 days from the mailing of the notice of 
successful bid.


Sec.  30.173  What happens after the successful bidder submits payment?

    (a) When OST receives payment, it will notify OHA, and the judge 
enters an order approving the sale and directing the LTRO to record the 
transfer of title to the interest of the successful bidder. The order 
will state the date of the title transfer, which is the date payment is 
received.
    (b) OST will:
    (1) Deposit the payment in the decedent's estate account; and
    (2) Distribute the money from the sale to the heir, devisee, or 
spouse whose interest was sold, in accordance with each respective 
interest.


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

    (a) If the successful bidder fails to pay the full amount of the 
bid, the sale will be canceled and the interest in the trust or 
restricted property will be distributed as determined by the judge.
    (b) The time for payment may not be extended.
    (c) Any partial payment received from the successful bidder will be 
returned.

Subpart H--Renunciation of Interest


Sec.  30.180  May I give up an inherited interest in trust or 
restricted property or trust personalty?

    If you are 18 years old and not under a legal disability, you may 
renounce an inherited interest in trust or restricted property, 
including a life estate, or in trust personalty.


Sec.  30.181  How do I renounce an inherited interest?

    You can renounce an inherited interest in trust personalty or 
restricted property, including an inherited life estate. To do this, 
you must file with the judge, before the filing of the final order in 
the probate case, a signed and acknowledged declaration specifying the 
interest renounced
    (a) You may retain a life estate in specific interests in trust or 
restricted land and renounce the remainder interests by filing the 
written declaration with the judge.
    (b) If you renounce an interest in trust or restricted land under 
25 U.S.C. 2206, you may either:
    (1) Designate an eligible person or entity meeting the requirements 
of Sec.  30.184 as the recipient; or
    (2) Renounce without making a designation.
    (c) If you choose to renounce your interests in favor of a 
designated recipient, the judge must notify the designated recipient.


Sec.  30.182  Who may receive a renounced interest in trust or 
restricted land?

    If the interest renounced is an interest in land, a person may 
renounce only in favor of:
    (a) An eligible heir of the testator;
    (b) A person eligible to be a devisee of the interest, if the 
renouncing person is a devisee of the interest under a valid will, and 
is:
    (1) A lineal descendant of the testator;
    (2) A person who owns a preexisting undivided trust or restricted 
interest in the same parcel;
    (3) Any Indian; or
    (4) The tribe with jurisdiction over the interest.


Sec.  30.183  Who may receive a renounced interest of less than 5 
percent in trust or restricted land ?

    An interest in trust or restricted land that is not disposed of by 
a valid will and that represents less than 5 percent of the entire 
undivided ownership of a

[[Page 45237]]

parcel of land may be renounced in favor of a single heir. The single 
heir may renounce only in favor of the Indian tribe with jurisdiction 
over the interest or one person who is:
    (a) Another eligible heir;
    (b) An Indian related to the heir by blood; or
    (c) A co-owner of another trust or restricted interest in the same 
parcel.


Sec.  30.184  Who may receive a renounced interest in trust personalty?

    If the interest renounced is an interest in trust personalty, a 
person may renounce in favor of any person or entity.
    (a) The Secretary will maintain and continue to manage trust 
personalty transferred by renunciation to a following person or entity:
    (1) A lineal descendant of the testator;
    (2) A person who owns a preexisting undivided trust or restricted 
interest in the same parcel of land;
    (3) The tribe with jurisdiction over the interest in land; or
    (4) Any Indian.
    (b) The Secretary will directly disburse and distribute trust 
personalty transferred by renunciation to a person or entity who is not 
eligible under Sec.  30.185.


Sec.  30.185  Can my designated recipient refuse to accept the 
interest?

    Yes. The recipient may refuse to accept the interest. The refusal 
must be made in writing and filed before the judge. If the designated 
recipient of the renounced interest refuses to accept that interest, 
then the renounced interest passes to the heirs of the decedent as if 
the person renouncing the interest had predeceased the decedent.


Sec.  30.186  Are renunciations that predate the American Indian 
Probate Reform Act of 2004 valid?

    Any renunciation filed and implemented in a probate order issued 
before the effective date of the American Indian Probate Reform Act of 
2004 is ratified.


Sec.  30.187  May I revoke my renunciation?

    No. A written renunciation is irrevocable after the judge accepts 
the renunciation and enters the final order in the probate proceeding.


Sec.  30.188  Does a renounced interest vest in the person who 
renounced it?

    No. An interest in trust or restricted property renounced under 
Sec.  30.181 is not considered to have vested in the renouncing heir or 
devisee, and the renunciation is not considered a transfer by gift of 
the property renounced to the renouncing person.
    (a) If the renunciation directs the interest to an eligible person 
or entity, the interest passes directly to that person or entity;
    (b) If the renunciation does not direct the interest to an eligible 
person or entity, the renounced interest passes to the heirs of the 
decedent as if the person renouncing the interest had predeceased the 
decedent.

Subpart I--Summary Probate Proceedings


Sec.  30.200  What is a summary probate proceeding?

    (a) A summary probate proceeding is the consideration of a probate 
case without a formal hearing on the basis of the probate file received 
from BIA. A summary probate proceeding may be conducted by a judge, an 
ADM, or a master, as determined by the supervising judge.
    (b) A decedent's estate may be processed summarily if the estate 
involves only cash and the total value of the estate does not exceed 
$5,000 on the date of death.


Sec.  30.201  What does a notice of a summary probate proceeding 
contain?

    The notice of summary probate proceeding will contain the 
following:
    (a) Notice of the right of any interested party to request 
treatment of the probate case as a formal probate proceeding;
    (b) A copy of the OHA-7, a statement of the IIM account balance, 
and a copy of the death certificate, except to a creditor who is not an 
eligible heir;
    (c) A notice that the only claim of a creditor that will be 
considered is that of a person defined as an eligible heir under these 
regulations, or of any person or entity who filed as a creditor with 
the BIA before the transfer of the probate file to OHA, with a copy of 
the claim;
    (d) A notice that an interested party may renounce or disclaim an 
interest, in writing, either generally or in favor of a designated 
person or entity; and
    (e) Any other information determined to be relevant by OHA.


Sec.  30.202  May I request that a summary probate proceeding be 
replaced by a formal probate proceeding?

    Yes. Interested parties who are devisees or eligible heirs have 30 
days from the mailing of the notice to file a written request for a 
formal probate hearing, to file a claim as a creditor, or to renounce 
or disclaim an interest in the estate.


Sec.  30.203  What must a summary probate decision contain?

    The written decision in a summary probate proceeding must be in the 
form of findings of fact and conclusions of law, with a proposed 
decision and order of distribution.
    (a) The decision must contain all of the following elements:
    (1) One of the following:
    (i) If the decedent left legal heirs or devisees, the names of each 
heir or devisee with the identifying numbers assigned by BIA, their 
birth dates, relationships to the decedent, the distribution of shares 
of each heir or devisee, and the names of the recipients of renounced 
or disclaimed interests; or
    (ii) If the decedent did not leave legal heirs or devisees, a 
statement to that effect;
    (2) Citations to the law of descent and distribution in accordance 
with which the decision is made;
    (3) A statement allowing or disallowing claims against the estate 
in accordance with this part, and an order directing the amount of 
payment of all approved claims;
    (4) A statement approving or disapproving any renunciation;
    (5) A statement of whether the heirs or devisees are Indian, non-
Indian, or eligible to hold property in trust status;
    (6) A statement advising all interested parties of their right to 
seek de novo review in accordance with this part, and that, if they 
fail to do so, the decision will become final 30 days after the mailing 
of the written decision; and
    (7) In a testate case only, a statement that:
    (i) Approves or disapproves a will;
    (ii) Interprets provisions of the approved will; and
    (iii) Describe the share each devisee is to receive, subject to any 
encumbrances.
    (b) When the judge or ADM issues a decision, the judge must issue a 
notice of the decision to all parties who have or claim any interest in 
the estate, and mail or deliver a copy of the notice, together with a 
copy of the decision, to each affected agency and to each interested 
party.


Sec.  30.204  How do I seek review of a summary probate proceeding?

    (a) If you are an interested party who is adversely affected by the 
written decision in a summary probate proceeding, you may seek de novo 
review of the case by filing a request with the OHA office that issued 
the decision.
    (b) The request for de novo review must be in writing and signed, 
and must contain the following information:
    (1) The name of the decedent;

[[Page 45238]]

    (2) A description of the requestor's relationship to the decedent;
    (3) An explanation of what errors the requestor alleges were made; 
and
    (4) An explanation of how the requestor is adversely affected by 
the decision.
    (c) You must send or deliver the request to OHA within 30 days 
after the date the decision is mailed.


Sec.  30.205  What happens after I file a request for de novo review?

    (a) Within 10 days of receiving a request for de novo review, OHA 
will notify the agency that prepared the probate file, all other 
affected agencies, and all interested parties of the de novo review, 
and assign the case to a judge.
    (b) The judge will review the merits of the case, conduct a hearing 
as necessary or appropriate under the regulations in this part, and 
issue a new decision in accordance with this part.


Sec.  30.206  What happens if nobody files for de novo review?

    If no interested party requests de novo review within 30 days of 
the date of the written order, OHA will send:
    (a) The final order confirming the written decision to all 
interested parties with notice of the right to file a petition for 
rehearing under this part;
    (b) The complete original record and the final order to the agency 
that prepared the probate file; and
    (c) A copy of any relevant portions of the record to any other 
affected agency.

Subpart J--Formal Probate Proceedings

Notice


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

    OHA will provide notice of the formal probate proceeding by mail 
and by posting. A posted and published notice may contain notices for 
more than one hearing, and need only specify the names of the 
decedents, the captions of the cases and the dates, times, places and 
purposes of the hearings.
    (a) OHA will send the notice to potential heirs and devisees named 
in the probate file and other interested parties identified by OHA in 
the case. The notice must:
    (1) Be sent by first class mail during the pendency of the probate 
proceeding to potential heirs and devisees and other interested parties 
identified by OHA in the case;
    (2) Be sent and posted at least 20 calendar days before the date of 
hearing, not counting the hearing date; and
    (3) Include a certificate of mailing with the date of mailing, 
signed by the person mailing the notice.
    (b) A presumption of actual notice exists with respect to any 
person to whom OHA sent a notice under paragraph (a) of this section, 
unless the notice is returned by the postal service unclaimed by the 
addressee.
    (c) OHA must post the notice in each of the following locations:
    (1) Five or more conspicuous places in the vicinity of the 
designated place of hearing;
    (2) Each agency office with jurisdiction over each parcel of trust 
or restricted property in the estate; and
    (3) Any other places and on other reservations that the judge deems 
appropriate.


Sec.  30.211  Will the notice be published in a newspaper?

    The judge may cause a notice of hearing to be published in a 
newspaper of general circulation in the vicinity of the designated 
place of hearing not fewer than 20 calendar days before the hearing. 
The cost of publication may be paid from the assets of the estate under 
Sec.  30.144.


Sec.  30.212  Can I waive notice of the hearing, the time limits, or 
form of notice?

    (a) An interested party may waive notice of hearing, the time 
limits, and the form of notice by:
    (1) Appearing at the hearing and participating in the hearing 
without objection; or
    (2) Filing a written waiver with the judge before the hearing.
    (b) The requirements for notice by posting may not be waived.


Sec.  30.213  What notice to a tribe is required in a formal probate 
proceeding?

    In probate cases in which the decedent died on or after June 20, 
2006:
    (a) The judge must notify any tribe with jurisdiction over the 
trust or restricted land in the estate of the pendency of a proceeding; 
and
    (b) The certificate of mailing of a notice of probate hearing to 
the tribe at its record address will be conclusive evidence that the 
tribe had notice of the decedent's death, of the probate proceedings, 
and of the right to purchase.


Sec.  30.214  What must a notice of hearing contain?

    The notice of hearing must:
    (a) State the name of the decedent and caption of the case;
    (b) Specify the date, time, and place that the judge will hold a 
hearing to determine the heirs of the decedent and, if a will is 
offered for probate, to determine the validity of the will;
    (c) Name all potential heirs of the decedent known to OHA, and, if 
a will is offered for probate, the devisees under the will, the drafter 
of the will, and the attesting witnesses to the will;
    (d) Cite this part as the authority and jurisdiction for holding 
the hearing;
    (e) Inform all persons who claim to have an interest in the estate 
of the decedent, including persons having claims against the estate, to 
be present at the hearing on penalty of losing the right to present 
evidence at the hearing;
    (f) Include notice of the opportunity to consolidate interests at 
the probate hearing, including that the heirs may propose additional 
interests for consolidation, and include notice of the opportunity for 
renunciation either generally or in favor of a designated recipient;
    (g) In estates for decedents whose date of death is on or after 
June 20, 2006, include notice of the possibilities of purchase and sale 
of trust or restricted property by heirs, co-owners, a tribe, or the 
Secretary; and
    (h) State that the hearing may be continued to another time and 
place.

Depositions, Discovery, and Prehearing Conference


Sec.  30.215  How can I obtain documentation related to the probate 
proceeding?

    (a) An interested party may make a written demand to produce 
documents for inspection and copying or photographing. This demand:
    (1) May be made at any stage of the proceeding before the 
conclusion of the hearing;
    (2) May be made upon any other party to the proceeding or upon a 
custodian of records concerning interested parties or their trust 
property;
    (3) Must be made in writing, and a copy must be filed with the 
judge; and
    (4) May demand copies of any documents, photographs, or other 
tangible things that are relevant to the issues, not privileged, and in 
another party's or custodian's possession, custody, or control.
    (b) Custodians of official records will furnish and reproduce 
documents, or permit their reproduction, in accordance with the rules 
governing the custody and control of the records.
    (c) Documentation may be made available to a member of the public, 
subject to any law to the contrary, who is not an interested party upon 
payment of the cost of producing the documents, as determined 
reasonable by the custodians of the records.


Sec.  30.216  How does an interested party obtain permission to take 
depositions?

    (a) Depositions may be taken upon stipulation of the parties or by 
order of the judge.

[[Page 45239]]

    (b) When an interested party files a written application, the judge 
may order the taking of the sworn testimony of any person by deposition 
upon oral examination for the purpose of discovery or for use as 
evidence at a hearing. The application must set forth:
    (1) The name and address of the proposed witness;
    (2) The reasons why the deposition should be taken;
    (3) The name and address of the person, qualified under Sec.  
30.217(a) to take depositions; and
    (4) The proposed time and place of the examination, which must be 
at least 20 days after the date of the filing of the application.
    (c) The judge may order the taking of a deposition. The order must 
be served upon all interested parties and must state:
    (1) The name of the witness;
    (2) The time and place of the examination, which must be at least 
15 days after the date of the order; and
    (3) The name and address of the officer before whom the examination 
is to be made.
    (d) The officer and the time and place in paragraphs (c)(2) and 
(c)(3) of this section need not be the same as those requested in the 
application under paragraph (b) of this section.


Sec.  30.217  How is a deposition taken?

    (a) The witness must appear before the judge or before an officer 
authorized to administer oaths by the law of the United States or by 
the law of the place of the examination.
    (b) The witness must be examined under oath or affirmation and 
subject to cross-examination. The witness's testimony must be recorded 
by the officer or someone in the officer's presence.
    (c) When the testimony is fully transcribed, it must be submitted 
to the witness for examination and must be read to or by him or her, 
unless examination and reading are waived.
    (1) Any changes in form or substance that the witness desires to 
make must be entered upon the transcript by the officer, with a 
statement of the reasons given by the witness for making them.
    (2) The transcript must then be signed by the witness, unless the 
interested parties by stipulation waive the signing, or the witness is 
unavailable or refuses to sign.
    (3) If the transcript is not signed by the witness, the officer 
must sign it and state on the record the fact of the waiver, the 
unavailability of the witness, or the refusal to sign together with the 
reason given, if any. The transcript may then be used as if it were 
signed, unless the judge determines that the reason given for refusal 
to sign requires rejection of the transcript in whole or in part.
    (d) The officer must certify on the transcript that the witness was 
duly sworn by the officer and that the transcript is a true record of 
the witness's testimony. The officer must then hand deliver or mail the 
original and two copies of the transcript to the judge.


Sec.  30.218  How may the transcript of a deposition be used?

    A transcript of a deposition ordered and taken in accordance with 
the provisions of this part may be offered by any party or the judge in 
a hearing if the judge finds that the evidence is otherwise admissible 
and:
    (a) The witness is unavailable; or
    (b) The interest of fairness is served by allowing the transcript 
to be used.


Sec.  30.219  Who pays for the costs of taking a deposition?

    The party who requests the taking of a deposition must make 
arrangements for payment of any costs incurred. The judge may assign 
the costs in the order.


Sec.  30.220  How does an interested party obtain written 
interrogatories and admission of facts and documents?

    (a) An interested party may serve upon any other interested party 
written interrogatories and requests for admission of facts and 
documents. The interested party may do this only if:
    (1) The interrogatories and requests are served in sufficient time 
to permit answers to be filed before the hearing, or as otherwise 
ordered by the judge; and
    (2) Copies of the interrogatories and requests are filed with the 
judge.
    (b) A party receiving interrogatories or requests served under 
paragraph (a) of this section must:
    (1) Serve answers upon the requesting party within 30 days from the 
date of service of the interrogatories or requests, or within another 
deadline agreed upon by the parties or prescribed by the judge; and
    (2) File a copy of the answers with the judge.


Sec.  30.221  May the judge limit the time, place, and scope of 
discovery?

    Yes. The judge may limit the time, place, and scope of discovery:
    (a) Upon timely motion by any interested party, if that party also 
gives proper notice to all interested parties and shows good cause; or
    (b) When the judge determines that limits are necessary to prevent 
delay of the proceeding or prevent undue hardship to a party or 
witness.


Sec.  30.222  What happens if a party fails to comply with discovery?

    (a) If a party fails without good cause to comply with discovery 
under this part or any order issued, the judge may:
    (1) Draw inferences with respect to the discovery request adverse 
to the claims of the party who has failed to comply with discovery or 
the order, or
    (2) Make any other ruling as the judge determines just and proper.
    (b) Failure to comply with discovery includes failure to:
    (1) Comply with a request for the production of a document;
    (2) Appear for examination;
    (3) Respond to interrogatories or requests for admissions; or
    (4) Comply with an order of the judge.


Sec.  30.223  What is a prehearing conference?

    Before a hearing, the judge may order the parties to appear for a 
conference to:
    (a) Simplify or clarify the issues;
    (b) Obtain stipulations, admissions, agreements on documents, 
understandings on matters already of record, or similar agreements that 
will avoid unnecessary proof;
    (c) Limit the number of expert or other witnesses to avoid 
excessively cumulative evidence;
    (d) Facilitate agreements disposing of all or any of the issues in 
dispute; or
    (e) Resolve such other matters as may simplify and shorten the 
hearing.

Hearings


Sec.  30.224  Can a judge compel a witness to appear and testify at a 
hearing?

    (a) The judge can issue a subpoena for a witness to appear and 
testify at a hearing and to bring documents or other material to the 
hearing.
    (1) An interested party may request that the judge issue a subpoena 
for the appearance of a witness to testify. The request must state the 
name, address, and telephone number or other means of contacting the 
witness, and the reason for the request. The request must be timely. 
The requesting party must mail the request to all other interested 
parties and to the witness at the time of filing.
    (2) The request must specify the documents or other material sought 
for production under the subpoena.
    (3) The judge will grant or deny the motion or request in writing 
and mail copies of the order to all the interested parties.
    (4) A person subpoenaed may seek to avoid a subpoena by filing a 
motion to quash with the judge and sending copies to the interested 
parties.
    (b) Anyone whose legal residence is more than 100 miles from the 
hearing location may ask the judge to excuse his or her attendance 
under subpoena.

[[Page 45240]]

    (1) If the judge denies the request, the judge may assign costs for 
the transportation of the witness to the place of hearing or 
deposition.
    (2) The judge will inform the interested parties of the request and 
the decision in writing in a timely manner.
    (c) A judge may assign the costs of requiring a non-party to appear 
at a hearing or a deposition.
    (d) If a subpoenaed person fails or refuses to appear at a hearing 
or to testify, the judge may file a petition in United States District 
Court for issuance of an order requiring the subpoenaed person to 
appear and testify.
    (e) The judge may seek by petition to the appropriate United States 
District Court the invocation of powers of contempt when necessary and 
appropriate to ensure due process and orderly prosecution of probate 
cases under the law.


Sec.  30.225  Are probate hearings open to the public?

    The probate hearings conducted under this part are open to public 
attendance.
    (a) In the exercise of discretion, the judge may close the hearing 
for the testimony of a party or other witness and exclude all persons 
but the interested parties.
    (b) Except as the judge finds necessary to comply with due process 
or for other good cause shown, and subject to transfer to the IBIA on 
appeal, the judge may seal the record or transcript of testimony taken 
during a closed hearing.


Sec.  30.226  Must testimony in a probate proceeding be under oath or 
affirmation?

    Yes. Testimony in a probate proceeding must be under oath or 
affirmation.


Sec.  30.227  Is a record made of formal probate hearings?

    (a) The judge must make a verbatim recording of all formal probate 
hearings. The judge will order the transcription of recordings of 
hearings as the judge determines necessary.
    (b) If the judge orders the transcription of a hearing, the judge 
will make the transcript available to interested parties.


Sec.  30.228  What evidence is admissible at a probate hearing?

    (a) A judge conducting probate proceedings under this part may 
admit any written, oral, documentary, or demonstrative evidence that 
is:
    (1) Relevant, reliable, and probate; and
    (2) Not privileged under Federal law, or unduly repetitious or 
cumulative.
    (b) The judge may exclude evidence if its probative value is 
substantially outweighed by the risk of undue confusion of the issues 
or delay.
    (c) Hearsay evidence is admissible. The judge may consider the fact 
that evidence is hearsay when determining its probative value.
    (d) A judge may admit a copy of a document into evidence or may 
require the admission of the original document. After examining the 
original document, the judge may substitute a copy of the original 
document and return the original.
    (e) The Federal Rules of Evidence do not directly apply to the 
hearing, but may be used as guidance by the judge and the parties in 
interpreting and applying the provisions of this section.
    (f) The judge may take official notice of any public record of the 
Department and of any matter of which federal courts may take judicial 
notice.
    (g) The judge determines the weight given to any evidence admitted.
    (h) Any party objecting to the admission or exclusion of evidence 
shall concisely state the grounds. A ruling on every objection must 
appear in the record.
    (i) There is no privilege under this part as to any communication 
between a decedent and any attorney advising the decedent as to any 
matter relevant to an issue between parties, all of whom claim through 
that decedent.


Sec.  30.229  Is testimony required for self-proved wills, codicils, or 
revocations?

    The judge may approve a self-proved will, codicil, or revocation, 
if uncontested, and order distribution with or without the testimony of 
any attesting witness.


Sec.  30.230  What if approval of the self-proved will, codicil, or 
revocation is contested?

    (a) If the approval of a will, codicil, or revocation is contested, 
the attesting witnesses who are in the reasonable vicinity of the place 
of hearing and who are of sound mind must be produced and examined.
    (b) If none of the attesting witnesses resides near the place of 
hearing at the time appointed for proving the will, the judge may:
    (1) Order the deposition of any available attesting witnesses at a 
location reasonably near the residence of the witness;
    (2) Admit the testimony of other witnesses to prove the 
testamentary capacity of the testator and the execution of the will; 
and
    (3) As evidence of the execution, admit proof of the handwriting of 
the testator and of the attesting witnesses, or of any of them.


Sec.  30.231  Who pays witnesses' costs?

    (a) Interested parties who desire a witness to testify at a hearing 
must make their own financial and other arrangements for the witness.
    (b) The judge may order payment of per diem, mileage, and 
subsistence at a rate not to exceed that allowed to witnesses called in 
the U.S. District Courts.
    (c) In the order for payment, the judge must specify whether such 
costs are to be allocated and charged against the interest of the party 
calling the witness or against the estate.
    (d) Costs of administration allowed against the estate under 
paragraphs (b) or (c) of this section will have a priority for payment 
greater than that for any creditor claims allowed.


Sec.  30.232  May a judge schedule a supplemental hearing?

    Yes. A judge may schedule a supplemental hearing if he or she deems 
it necessary.


Sec.  30.233  What will the official record of the probate case 
contain?

    After the completion of the hearing, the judge will compile the 
official record. The official record of the probate case will contain:
    (a) A copy of the posted public notice of hearing showing the 
posting certifications;
    (b) A copy of each notice served on interested parties with proof 
of mailing;
    (c) The record of the evidence received at the hearing, including 
any transcript made of the testimony;
    (d) Claims filed against the estate;
    (e) Any wills, codicils, and revocations;
    (f) Inventories and valuations of the estate;
    (g) Pleadings and briefs filed;
    (h) Special or interim orders;
    (i) Copies of all proposed or accepted settlement agreements, 
consolidation agreements, and renunciations and acceptances of 
renounced property;
    (j) In the case of sale of estate property at probate, copies of 
notices of sale, appraisals and objections to appraisals, requests for 
purchases, all bids received, and proof of payment;
    (k) The decision, order, and the notices thereof; and
    (l) Any other documents or items deemed material by the judge.


Sec.  30.234  What will the judge do with the original record?

    (a) The judge must send the original record to the designated LTRO 
in accordance with 25 CFR part 150.
    (b) The judge must send a copy of:
    (1) The order to the agency originating the probate, and

[[Page 45241]]

    (2) The order and inventory to other affected agencies.


Sec.  30.235  What happens if a hearing transcript has not been 
prepared?

    When a hearing transcript has not been prepared, the recording of 
the hearing must be retained in the office of the judge issuing the 
decision until the time allowed for rehearing or appeal has expired, 
and the original record returned to the LTRO must contain a statement 
indicating that no transcript was prepared.

Decisions in Formal Proceedings


Sec.  30.236  What will the judge's decision in a formal probate 
proceeding contain?

    The judge must decide the issues of fact and law involved in any 
proceedings and issue a written decision.
    (a) In all cases, the decision will:
    (1) List the names of each heir or devisee with the identifying 
numbers as assigned by BIA, birth dates, and relationship to the 
decedent;
    (2) Describe the distribution of shares of each of the heirs, in 
addition to the names of the recipients of renounced or disclaimed 
interests;
    (3) Provide the information necessary to identify the persons and 
property interests involved in any settlement or consolidation 
agreement, renunciations of interest, and purchases at probate;
    (4) Allow or disallow claims against the estate in accordance with 
this part, and order the amount of payment for all approved claims;
    (5) Approve or disapprove any renunciation, settlement agreement, 
consolidation agreement, or purchase at probate;
    (6) State whether the heirs or devisees are Indian, non-Indian, or 
eligible to hold property in trust status; and
    (7) Include a determination of any rights of dower, curtesy, or 
homestead that may constitute a burden upon the interest of the heirs.
    (b) In a testate case, the decision will also:
    (1) Approve or disapprove a will;
    (2) Interpret provisions of the approved will; and
    (3) Describe the share each devisee is to receive, subject to any 
encumbrances.


Sec.  30.237  What notice of the decision will the judge provide?

    When the judge issues a decision, the judge must issue a notice of 
the decision to all parties who have or claim any interest in the 
estate, and mail or deliver a copy of the notice, together with a copy 
of the decision, to each affected agency and to each interested party. 
The decision will not become final until the expiration of the 30 days 
allowed for the filing of a petition for rehearing by aggrieved 
parties.


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

    (a) Any interested party may file with the judge a written petition 
for rehearing within 30 days after the date on which notice of the 
decision is mailed.
    (b) If the petition is based on newly-discovered evidence, it must:
    (1) Be accompanied by affidavits or declarations of witnesses 
stating fully the content of the new evidence; and
    (2) State the reasons for the failure to discover and present that 
evidence at the hearings held before the issuance of the decision.
    (c) A petition for rehearing must state specifically and concisely 
the grounds on which it is based.
    (d) The judge must forward a copy of the petition for rehearing to 
the affected agencies.


Sec.  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.


Sec.  30.240  How will the judge address a petition for rehearing?

    (a) If proper grounds are not shown, or if the petition is not 
timely filed, the judge will issue an order denying the petition for 
rehearing and setting forth the reasons and furnish copies of the order 
to the petitioner, the agencies, and the interested parties.
    (b) If the petition appears to show merit, the judge must:
    (1) Cause copies of the petition and supporting papers to be served 
on those persons whose interest in the estate might be adversely 
affected by the granting of the petition;
    (2) Allow all persons served a reasonable, specified time in which 
to submit answers or legal briefs in response to the petition; and
    (3) Consider, with or without a hearing, the issues raised in the 
petition.
    (c) The judge may affirm, modify, or vacate the former decision.
    (d) Upon entry of a final order, the judge must distribute the 
order as provided in this part.


Sec.  30.241  Can I submit another petition for rehearing?

    No. Successive petitions for rehearing are not permitted. The 
jurisdiction of the judge terminates upon the issuance of a decision 
finally disposing of a petition for rehearing, except for:
    (a) The issuance of necessary orders nunc pro tunc to correct 
clerical errors in the decision; and
    (b) The reopening of a case under this part.


Sec.  30.242  When does the judge's decision on a petition for 
rehearing become final?

    The decision will become final upon the expiration of the 30 days 
allowed for the filing of a notice of appeal, as provided in this part.


Sec.  30.243  Can a closed probate case be reopened?

    (a) A person claiming an interest in an estate may file a petition 
for reopening a closed probate case with the OHA office that issued the 
original decision.
    (1) A case may be reopened based upon lack of notice or to prevent 
manifest injustice only.
    (2) All grounds for the reopening must be set forth fully. If based 
on alleged errors of fact, all such allegations must be under oath and 
supported by affidavits.
    (3) If the petition for reopening is based upon lack of notice of 
the original proceedings, the petition must be filed within 1 year from 
the date the petitioner discovered the error.
    (b) A judge may reopen a case on the judge's own initiative.


Sec.  30.244  How will the judge address my petition for reopening?

    (a) If the judge finds that proper grounds are not shown, the judge 
will issue an order denying the petition and giving the reasons for the 
denial. Copies of the judge's decision must be mailed to the 
petitioner, the agencies, and those persons whose rights would be 
affected.
    (b) If the petition appears to show merit, the judge must cause 
copies of the petition and all papers filed by the petitioner to be 
served on those persons whose interest in the estate could be affected 
by the granting of the petition. These persons may respond to the 
petition by filing answers, cross-petitions, or briefs. The filings 
must be made within the time periods set by the judge.


Sec.  30.245  What happens if the judge reopens the case?

    Upon reopening, the judge may affirm, modify, or vacate the former 
decision.
    (a) Copies of the judge's decision on reopening must be mailed to 
the petitioner and to all persons who received copies of the petition.
    (b) By order directed to the agency, the judge may suspend further 
distribution of the estate or income during the reopening proceedings.
    (c) The judge must file the record made on a reopening petition 
with the

[[Page 45242]]

designated LTRO and must furnish a duplicate record to the affected 
agencies.


Sec.  30.246  When will the decision on reopening become final?

    The decision on reopening will become final upon the expiration of 
the 30 days allowed for the filing of a notice of appeal, as provided 
in this part.

Subpart K--Miscellaneous Provisions


Sec.  30.250  When does the anti-lapse provision apply?

    (a) The following table illustrates how the anti-lapse provision 
applies.

------------------------------------------------------------------------
            If . . .                   And . . .          Then . . .
------------------------------------------------------------------------
an Indian testator devises trust  the devisee dies    the lineal
 property to any of his or her     before the          descendants take
 grandparents or to the lineal     testator, leaving   the right, title,
 descendant of a grandparent.      lineal              or interest so
                                   descendants.        given by the will
                                                       per stirpes
------------------------------------------------------------------------

    (b) For purposes of this section, relationship by adoption is 
equivalent to relationship by blood.


Sec.  30.251  What happens if an heir or devisee knowingly participates 
in the willful and unlawful killing of the decedent?

    Any person who knowingly participates, either as a principal or as 
an accessory before the fact, in the willful and unlawful killing of 
the decedent, may not take, directly or indirectly, any inheritance or 
devise under the decedent's will. This person will be treated as if he 
or she had predeceased the decedent.


Sec.  30.252  Can a judge allow fees for attorneys representing 
interested parties?

    (a) Except for attorneys representing creditors, the judge may 
allow fees for attorneys representing interested parties.
    (1) At the discretion of the judge, these fees may be charged 
against the interests of the party represented or as a cost of 
administration.
    (2) Petitions for allowance of fees must be filed before the close 
of the last hearing.
    (b) Nothing in this section prevents an attorney from petitioning 
for additional fees to be considered at the disposition of a petition 
for rehearing and again after an appeal on the merits. An order 
allowing attorney fees is subject to a petition for rehearing and to an 
appeal.


Sec.  30.253  How must minors or other legal incompetents be 
represented?

    Minors and other legal incompetents who are interested parties must 
be represented at all hearings by legally appointed guardians, or by 
guardians ad litem appointed by the judge. In appropriate cases, the 
judge may order the payment of fees to the guardian ad litem from the 
assets of the estate.


Sec.  30.254  What happens when a person dies without a valid will and 
has no heirs?

    (a) The judge will determine whether a person with trust or 
restricted property died intestate and without heirs, and the judge 
will determine whether 25 U.S.C. 2206(a) applies.
    (b) If 25 U.S.C. 2206(a) does not apply, the judge will order the 
escheat of the property in accordance with:
    (1) 25 U.S.C. 373a if the trust or restricted property is not on 
the public domain; or
    (2) 25 U.S.C. 373b if the trust or restricted property is on the 
public domain.

Subpart L--Tribal Purchase of Interests Under Special Statutes


Sec.  30.260  What land is subject to a tribal purchase option at 
probate?

    Sections 30.260 through 30.274 apply to formal proceedings in 
Indian probate that relate to the tribal purchase of a decedent's 
interests in the trust and restricted land shown in the following 
table.

------------------------------------------------------------------------
  Location of trust or restricted land    Legislation governing purchase
------------------------------------------------------------------------
(a) Yakima Reservation or within the     The Act of December 31, 1970
 area ceded by the Treaty of June 9,      (Pub. L. 91-627; 84 Stat.
 1855 (12 Stat. 1951).                    1874; 25 U.S.C. 607 (1976)),
                                          amending section 7 of the Act
                                          of August 9, 1946 (60 Stat.
                                          968).
(b) Warm Springs Reservation or within   The Act of August 10, 1972
 the area ceded by the Treaty of June     (Pub. L. 92-377; 86 Stat.
 25, 1855 (12 Stat. 37).                  530).
(c) Nez Perce Indian Reservation or      The Act of September 29, 1972
 within the area ceded by the Treaty of   (Pub. L. 92-443; 86 Stat.
 June 11, 1855 (12 Stat. 957).            744).
(d) Devils Lake Sioux Reservation for    The Act of January 12, 1983
 the Spirit Lake Sioux Tribe.             (Pub. L. 97-459, Section 108,
                                          96 Stat. 2515).
(e) Standing Rock Sioux Reservation....  The Act of June 17, 1980 (Pub.
                                          L. 96-276, section 4(b), 94
                                          Stat. 537).
------------------------------------------------------------------------

Sec.  30.261  What determinations with regard to a tribal purchase 
option will a judge make?

    (a) In the exercise of probate authority, a judge will determine:
    (1) The entitlement of a tribe to purchase a decedent's interests 
in trust or restricted land under the statutes;
    (2) The entitlement of a surviving spouse to reserve a life estate 
in one-half of the surviving spouse's interests that have been 
purchased by a tribe; and
    (3) The fair market value of such interests, as determined by an 
appraisal, including the value of any life estate reserved by a 
surviving spouse.
    (b) In making a determination under paragraph (a)(1) of this 
section, the following issues will be determined by the official tribal 
roll, which is binding upon the judge:
    (1) Enrollment or refusal of the tribe to enroll a specific 
individual; and
    (2) Specification of blood quantum, where pertinent.
    (c) For good cause shown, the judge may stay the probate proceeding 
to permit an aggrieved party to pursue an enrollment application, 
grievance, or appeal through the established procedures applicable to 
the tribe.


Sec.  30.262  When will BIA furnish a valuation of a decedent's 
interests?

    In all probates, at the earliest possible stage of the proceeding 
before issuance of a probate decision, BIA must furnish a valuation of 
the decedent's interests when the record reveals to the agency:
    (a) That the decedent owned interests in land located on one or 
more of the reservations designated in Sec.  30.260; and

[[Page 45243]]

    (b) That one or more of the probable heirs or devisees who may 
receive the interests either:
    (1) Is not enrolled in the tribe of the reservation where the land 
is located; or
    (2) Does not have the required blood quantum in the tribe to hold 
the interests against a claim made by the tribe.
    (c) The valuation must be made on the basis of the fair market 
value of the property, including fixed improvements, as of the date of 
decedent's death.
    (d) If there is a surviving spouse whose interests may be subject 
to the tribal purchase option, the valuation must include the value of 
a life estate based on the life of the surviving spouse in one-half of 
such interests.
    (e) BIA must include the valuation report in the probate package 
submitted to OHA. Interested parties may examine and copy, at their 
expense, the valuation report at the agency or the office of the judge.


Sec.  30.263  When is a final decision issued?

    (a) When a decedent is shown to have owned land interests in any 
one or more of the reservations designated in Sec.  30.260, the probate 
proceeding relative to the determination of heirs, approval or 
disapproval of a will, and the claims of creditors will first be 
concluded as final for the Department in accordance with this part. 
This decision is referred to in this section as the ``probate 
decision.''
    (b) At the formal probate hearing, a finding must be made on the 
record showing those interests in land, if any, that are subject to the 
tribal purchase option.
    (1) The finding must be included in the probate decision setting 
forth the apparent rights of the tribe as against affected heirs or 
devisees and the right of a surviving spouse whose interests are 
subject to the tribal purchase option to reserve a life estate in one-
half of such interests.
    (2) If the finding is that there are no interests subject to the 
tribal purchase option, the decision must so state.
    (3) A copy of the probate decision, to which must be attached a 
copy of the valuation report, must be distributed to all interested 
parties in accordance with Sec.  30.237.


Sec.  30.264  When may a tribe exercise its statutory option to 
purchase?

    (a) A tribe may purchase all or a part of the available interests 
specified in the probate decision within 60 days of the probate 
decision unless a petition for rehearing has been filed under Sec.  
30.238 or a demand for hearing has been filed under Sec.  30.268.
    (b) If a petition for rehearing or a demand for hearing has been 
filed, a tribe may purchase all or a part of the available interests 
specified in the probate decision within 20 days from the date of the 
decision on rehearing or hearing, whichever is applicable. A tribe may 
not, however, claim an interest less than the decedent's total interest 
in any one individual tract.
    (c) Upon failure to timely file a notice of purchase, the right to 
distribution of all unclaimed interests will accrue to the heirs or 
devisees.


Sec.  30.265  How does a tribe exercise its statutory option to 
purchase?

    To exercise its option to purchase, the tribe must file with the 
agency a written notice of purchase and resolution or other authorizing 
document, together with the tribe's certification that copies have been 
mailed on the same date to the judge and to the affected heirs or 
devisees.


Sec.  30.266  May a surviving spouse reserve a life estate when a tribe 
exercises its statutory option to purchase?

    Yes. When the heir or devisee whose interests are subject to the 
tribal purchase option is a surviving spouse, the spouse may reserve a 
life estate in one-half of the interests.
    (a) To reserve a life estate, the spouse must, within 30 days after 
the tribe has exercised its option to purchase the interest, file with 
the agency both:
    (1) A written notice to reserve a life estate; and
    (2) A certification that copies of the notice have been mailed on 
the same date to the judge and the tribe.
    (b) Failure to file the notice on time, as required by paragraph 
(a)(1) of this section, constitutes a waiver of the option to reserve a 
life estate.


Sec.  30.267  What if I disagree with the probate decision regarding 
tribal purchase option?

    Any interested party aggrieved by the probate decision may, within 
30 days from the date of the probate decision, file with the judge a 
written petition for rehearing in accordance with this part.


Sec.  30.268  May I demand a hearing regarding the tribal purchase 
option decision?

    Yes. Any interested party aggrieved by the exercise of the tribal 
purchase option to purchase the interests in question or the valuation 
of the interests as set forth in the valuation report may file with the 
judge a written demand for hearing.
    (a) The demand for hearing must be filed by whichever of the 
following deadlines is applicable:
    (1) Within 30 days from the date of the probate decision;
    (2) Within 30 days from the date of the decision on rehearing; or
    (3) Within 20 days from the date the tribe exercises its option to 
purchase available interests.
    (b) The demand for hearing must:
    (1) Include a certification that copies of the demand have been 
mailed on the same date to the agency and to each interested party; and
    (2) State specifically and concisely the grounds upon which it is 
based.


Sec.  30.269  What notice of the hearing will the judge provide?

    The judge must, upon receiving a demand for hearing:
    (a) Set a time and place for the hearing after expiration of the 
30-day period fixed for the filing of the demand for hearing as 
provided in Sec.  30.268; and
    (b) Mail a notice of the hearing to all interested parties not less 
than 20 days in advance of the hearing.


Sec.  30.270  How will the hearing be conducted?

    (a) At the hearing, each party challenging the tribe's claim to 
purchase the interests in question or the valuation of the interests as 
set forth in the valuation report will have the burden of proving his 
or her position.
    (b) Upon conclusion of the hearing, the judge will issue a decision 
that determines all of the issues including, but not limited to:
    (1) The fair market value of the interests purchased by the tribe; 
and
    (2) Any adjustment of the fair market value made necessary by the 
surviving spouse's decision to reserve a life estate in one-half of the 
interests.
    (c) The decision must specify a right of appeal to the Board of 
Indian Appeals within 30 days from the date of the decision in 
accordance with Sec. Sec.  4.320 through 4.326 of this subtitle.
    (d) The judge must lodge the complete record relating to the demand 
for hearing with the LTRO as provided in Sec.  30.234, furnish a 
duplicate record thereof to the agency, and mail a notice of such 
action together with a copy of the decision to each interested party.


Sec.  30.271  How must the tribe pay for the interests it purchases?

    (a) A tribe must pay the full fair market value of the interests 
purchased, as set forth in the valuation report or as determined after 
hearing in accordance with Sec.  30.268, whichever is applicable.
    (b) Payment must be made within 2 years from the date of decedent's 
death or within 1 year from the date of notice of purchase, whichever 
is later.

[[Page 45244]]

Sec.  30.272  What are the Superintendent's duties upon payment by the 
tribe?

    Upon payment by the tribe of the interests purchased, the 
Superintendent must:
    (a) Issue a certificate to the judge that payment has been made; 
and
    (b) File with the certificate all supporting documents required by 
the judge.


Sec.  30.273  What action will the judge take to record title?

    After receiving the certificate and supporting documents, the judge 
will:
    (a) Issue an order that the United States holds title to the 
interests in trust for the tribe;
    (b) File the complete record, including the decision, with the LTRO 
as provided in Sec.  30.234;
    (c) Furnish a duplicate copy of the record to the agency; and
    (d) Mail a notice of the action together with a copy of the 
decision to each interested party.


Sec.  30.274  What happens to income from land interests during 
pendency of the probate?

    During the pendency of the probate and up to the date of transfer 
of title to the United States in trust for the tribe in accordance with 
Sec.  30.273, all income received or accrued from the land interests 
purchased by the tribe will be credited to the estate and paid to the 
heirs.

    Cross-reference: See 25 CFR part 2 for procedures for appeals to 
Regional Directors and to the Director of the Bureau of Indian 
Affairs.

    Dated: July 26, 2006.
James E. Cason,
Associate Deputy Secretary, Department of the Interior.
[FR Doc. 06-6622 Filed 8-7-06; 8:45 am]
BILLING CODE 4310-W7-P


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