45174 Federal Register / Vol. 71, No. 152 / Tuesday, August 8, 2006 / Proposed Rules 

DEPARTMENT OF THE INTERIOR 

Bureau of Indian Affairs 

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

Office of the Secretary 

43 CFR Parts 4 and 30 

RIN 1076–AE59 

Indian Trust Management Reform 

AGENCY: Bureau of Indian Affairs, Office 

of the Secretary, Interior. 

ACTION: Proposed rule. 

SUMMARY: The Bureau of Indian Affairs 

(BIA) and the Office of the Secretary 

propose to amend several of their 

regulations related to Indian trust 

management to further fulfill the 

Secretary’s fiduciary responsibilities to 

federally recognized tribes and 

individual Indians and to meet the 

Indian trust management policies 

articulated by Congress in the Indian 

Land Consolidation Act (ILCA), as 

amended by the American Indian 

Probate Reform Act of 2004 (AIPRA). 

These amendments address Indian trust 

management issues in the areas of 

probate, probate hearings and appeals, 

tribal probate codes, life estates and 

future interests in Indian land, the 

Indian land title of record; and 

conveyances of trust or restricted land. 

There is also an ‘‘Application for 

Consolidation by Sale’’ form that is 

associated with one of these 

amendments. 

DATES: Please submit your comments by 

October 10, 2006. 

ADDRESSES: You may submit comments, 

identified by the number 1076–AE59, by 

any of the following methods: 

—Federal rulemaking portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

—Web site at http:// 

www.doitrustregs.com. 

—E-mail: Michele_F_Singer@ios.doi.gov. 

Include the number 1076–AE59 in the 

subject line of the message. 

—Fax: (202) 208–5320. Include the 

number 1076–AE59 in the subject line 

of the message. 

—Mail: U.S. Department of the Interior, 

1849 C Street, NW., Mail Stop 4141, 

Washington, DC 20240 

—Hand delivery: Michele Singer, U.S. 

Department of the Interior, 1849 C 

Street, NW., Washington, DC 20240. 

Comments on the information 

collection burdens, including comments 

on or requests for copies of the 

‘‘Application for Consolidation by Sale’’ 

form, are separate from those on the 

substance of the rule. Send comments 

on the information collection burdens 

to: Interior Desk Officer 1076–AE59, 

Office of Management and Budget, email: 

oira_docket@omb.eop.gov; or 202/395– 

6566 (fax). Please also send a copy of 

your comments to BIA at the location 

specified under the heading ADDRESSES. 

FOR FURTHER INFORMATION CONTACT: 

Michele Singer, Counselor to the 

Assistant Secretary—Indian Affairs, 

Department of the Interior, Bureau of 

Indian Affairs, 1849 C Street NW., Mail 

Stop 4141, Washington, DC 20240, 

telephone (202) 273–4680. 

SUPPLEMENTARY INFORMATION: 

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 ...............................

NEW-Tribal Probate Codes ............

5 U.S.C. 301; 25 U.S.C. 2, 9, 372–74, 410; 44 U.S.C. 3101 et seq.; Pub. L. 108–374 (American Indian 

Probate Reform Act of 2004). 

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 ...............................

NEW—Probate Hearing Procedures.

5 U.S.C. 301; 43 U.S.C. 1201. 


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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 ‘‘ToBe’’ model, known as the Fiduciary 

Trust Model (FTM). The FTM redesigns 

trust processes into more efficient, 

consistent, integrated, and fiscally 

responsible business processes. In 

developing the FTM, the team 

incorporated years of Departmental 

consultation with tribes. The 

Department adopted the FTM in 

December 2004 to guide trust reform. 

Together with Indian affairs policies, 

the FTM forms the basis of today’s 

rulemaking. 

B. The Need for This Proposed 

Rulemaking 

Since adopting the FTM, the 

Department has formed an FTM 

Implementation Team with tribal 

representatives. The FTM 

Implementation Team is leading 

internal organizational changes for 

improving performance and 

accountability in management of the 

trust. At the beginning of the 

reengineering process, the Joint Task 

Force had anticipated that regulatory 

changes would be necessary to fully 

implement trust reform. The Team has 

since determined, and the Secretary has 

confirmed, that certain regulatory 

changes are indeed needed to enable the 

Department to fully implement the 

FTM. Today’s proposed rule includes 

many of these necessary regulatory 

changes. 

Additionally, Congress enacted the 

American Indian Probate Reform Act of 

2004. AIPRA amends ILCA to better 

meet the trust reform goals for land 

consolidation articulated in ILCA. 

Regulatory changes authorized by 

AIPRA are included in this proposed 

rule. 

C. Development of Proposed Regulatory 

Language 

This proposed rulemaking 

encompasses tribal and Departmental 

representatives’ efforts on the Joint Task 

Force, as well as the efforts of tribal 

representatives who have provided 

comments throughout the trust reform 

process. These efforts guided in-house 

teams in drafting the specific regulatory 

language included in this proposed 

rulemaking. The in-house teams 

consisted of Federal personnel from 

Department headquarters and the field, 

and included program officers and 

Department attorneys possessing 

extensive expertise in probate, land 

titles and records, acquisition and 

conveyance, leasing and grazing, and 

administrative appeals. On December 

27, 2005, the Department shared 

advance copies of the proposed 

regulatory language (identified as 

‘‘preliminary drafts’’ throughout this 

preamble) with leaders of each 

Federally recognized tribal government, 

as well as additional contacts in Indian 

country, for their input and 

recommendations. The Department has 

also presented the preliminary drafts 

and obtained the input of tribes at two 

formal consultation meetings: one in 

Albuquerque, New Mexico on February 

14–15, 2006, and one in Portland, 

Oregon on March 29, 2006. Comments 

received during these consultations and 

in the time leading up to this 

publication have identified several 

issues that the Department considered 

in revising the preliminary drafts for 

publication as a proposed rule. In 

accordance with the government-togovernment relationship with tribes, 

formal consultations are also being 

scheduled to take place during the 

comment period that follows this 

publication in the Federal Register to 

facilitate an informed final rule. See 

Section IV, Public Comments, for details 

on upcoming consultations. 

D. Status of Other Indian Trust 

Management Reform Regulations 

The Department is also developing 

regulatory amendments to land 

acquisitions (25 CFR part 151), leasing 

(25 CFR part 162), and grazing (25 CFR 

part 166), and developing draft 

regulatory language addressing trust 

fund accounting and appeals (new CFR 

part), unclaimed moneys/whereabouts 

unknown (new CFR part), and fees for 

service (new CFR part). Based on input 

received during the February 14–15, 

2006, Albuquerque tribal consultation 

session, the Department has determined 

that these regulations require additional 

work before publication as a proposed 

rule. The Department plans to 

promulgate these additional regulations 

at some point in the future. Together, 

these regulatory changes will provide 

the Department with the tools it needs 

to better serve beneficiaries and will 

standardize procedures for consistent 


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execution of fiduciary responsibilities 

across BIA Regions. 

III. Overview of Proposed Rule 

The proposed rule amends various 

parts of the CFR to further implement 

Indian trust management reform and 

meet the policies expressed by Congress 

in ILCA, as amended by AIPRA. 

Together, these amendments form an 

integrated approach to Indian trust 

management related to probate, land 

records and title documents, and 

conveyances that allow the Department 

to better meet the needs of its 

beneficiaries. 

The Department has revised many of 

these regulations, in accordance with 

the Plain Language Initiative (63 FR 

31885 (June 10, 1998)) to facilitate ease 

of use and public comprehension. 

In addition to making plain language 

revisions, amendments revise the 

regulations to: 

• Incorporate AIPRA changes to 

probate: AIPRA created a uniform 

probate code to standardize intestate 

succession rules for trust and restricted 

property. The uniform probate code 

reinforces tribal sovereignty by 

eliminating the application of state laws 

in the probate of trust and restricted 

assets while deferring to approved tribal 

probate codes. AIPRA also established 

new mechanisms for consolidating 

fractionated interests at probate and 

through sale of highly fractionated 

tracts. The proposed amendments to 

probate regulations would implement 

AIPRA’s provisions by requiring the 

additional information needed to 

determine heirs and devisees to be 

included in the probate file, and by 

establishing the procedures for 

directional disclaimers, purchases at 

probate and consolidation agreements. 

These regulations continue to refer all 

probate cases to OHA. The amendments 

streamline the OHA process by 

shortening deadlines to more reasonable 

time periods. Amendments to life estate 

provisions reflect AIPRA’s change in the 

valuation of a life estate to be ‘‘without 

regard to waste’’ and base the valuation 

on the four-year average Single Life 

Factor used by the U.S. Internal 

Revenue Service in Table S of the 7520 

rate schedule, without regard to gender. 

• Promote consolidation (reduce 

fractionation) of interests: Allotments 

owned by Indians have become 

increasingly fractionated with the 

probate of each generation, resulting in 

the division of the allotment into 

smaller and smaller interests. These 

amendments meet the policy expressed 

by Congress to reduce fractionation (i.e., 

the exponential increase in the number 

of ownership interests in a given parcel 

of land) of tribal and individual Indian 

interests in trust and restricted property 

through the use of several tools. These 

tools include the opportunities for tribes 

to establish a tribal land consolidation 

plan; purchase interests in land within 

their respective jurisdictions when 

offered for negotiated sale, gift, or 

exchange; make a tribal tract purchase 

(i.e., obtain fractionated interests of nonconsenting trust and restricted owners 

under certain circumstances); and unify 

ownership and consolidate interests in 

a tract through partition. The 

amendments allow both tribes and 

individual Indians to obtain highly 

fractionated interests through a new 

mechanism, created by AIPRA: 

consolidation by sale (called ‘‘partition 

of highly fractionated lands’’ in AIPRA). 

Additionally, the new AIPRA 

mechanisms being incorporated in 

probate regulations will offer 

opportunities to reduce fractionation 

through the distribution of probate 

property. 

• Improve service to beneficiaries: 

Amendments to the Land Titles and 

Records Office (LTRO) regulations will 

update and standardize LTRO title 

practices and recordation to ensure the 

Secretary is able to accurately track and 

record accounting of trust and restricted 

interest owners, allowing the Secretary 

to better serve the beneficiaries. 

Amendments to the probate process are 

aimed at facilitating the process to 

reduce the probate backlog and better 

serve beneficiaries. By clarifying the 

requirements and processes for probate, 

approval of tribal probate codes, 

obtaining LTRO services and products, 

and conveying trust and restricted 

property, the Department improves 

communication and transparency, 

allowing better service to beneficiaries. 

The Department is committed to fully 

explaining both the purpose and 

intended effects of these regulations in 

this preamble. More detailed 

explanations of each part are provided 

below, followed by summaries of 

comments received during tribal 

consultations on the preliminary drafts 

of these regulations. The Department 

welcomes any questions or comments 

requesting clarification of these parts, as 

well as additional comments. 

Additionally, upon finalization of any of 

these regulations, the Department plans 

to develop training and other 

explanatory materials, where 

appropriate, to facilitate transparency in 

implementation of these regulations. 

IV. Part-by-Part Analysis 

The following sections provide a 

description of the amendments with 

respect to each CFR part and provide 

distribution tables listing what current 

CFR sections are proposed for change, 

the new (i.e., proposed) CFR section, 

and a description of the proposed 

changes. Because this proposed rule 

incorporates changes made to the 

preliminary drafts, which were 

distributed to tribes in December 2005, 

the following part-by-part analysis 

includes a discussion of major changes 

made to each preliminary draft of the 

CFR part in response to comments. 

A. 25 CFR Part 15 

The purpose of this part is to describe 

the authorities, policies and procedures 

the BIA (or tribe that has contracted or 

compacted to fulfill probate functions) 

uses to prepare a probate file for an 

Indian decedent’s trust estate, except for 

restricted land derived from allotments 

made to members of the Five Civilized 

Tribes (Cherokee, Choctaw, Chickasaw, 

Creek and Seminole) in Oklahoma. 

Amendments to this part revise 

several subsections to ensure that the 

probate file delivered to OHA for 

adjudication is as complete as possible. 

By requiring a certification by BIA that 

they have examined certain sources of 

information and that the file is as 

complete as possible based on those 

sources of information, the amendments 

will prevent multiple transfers of the 

probate file between BIA and OHA, 

facilitating the process. Additional 

changes to the records requirements, 

such as deleting the requirement for a 

birth certificate, are also intended to 

facilitate the probate process. 

The amendments ensure that 

information is included in the probate 

file to determine whether heirs and 

devisees meet the AIPRA definition of 

‘‘Indian.’’ The amendments also 

incorporate definitions regarding 

AIPRA’s new methods for consolidating 

interests at probate: 

• Consolidation agreements, which 

are agreements by the decedent’s heirs 

and devisees to consolidate their 

inherited/devised interests in trust and 

restricted land or consolidate their 

inherited/devised interests in land with 

other interests they already own in trust 

and restricted land; and 

• Purchase options at probate, which 

allow eligible purchasers to purchase or 

exchange a decedent’s interest in trust 

or restricted land. 

Amendments to this part ensure that 

the probate file contains information 

necessary for implementation of 

statutory solutions to fractionation set 

out in 43 CFR part 4, which addresses 

OHA probate hearings. Part 15 

prescribes what must be included in a 

probate package and how it will be 

compiled. 


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Changes From Preliminary Draft 

Several tribal commenters questioned 

why 25 CFR part 15 and 43 CFR part 4, 

which both address the probate process, 

are in separate CFR titles. The 

Department has determined that 

because these two parts address 

different agencies—25 CFR part 15 

addresses BIA preparation of the 

probate file, and 43 CFR part 4 

addresses adjudication of the probate 

file once OHA receives it from BIA—

these parts are best kept in their 

respective titles. 

Several commenters suggested that 

the definitions in both 25 CFR part 15 

and 43 CFR part 4 should track the 

definitions as set out in ILCA, as 

amended by AIPRA. The Department 

has reviewed the regulatory definitions, 

and amended them as appropriate to 

ensure that they are consistent with 

AIPRA and with 43 CFR parts 4, 30. 

The Department examined and 

changed terms, as appropriate, to ensure 

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. 

Current citation New citation Title Remarks 

15.1 ................................ 15.1 What is the purpose of this part? No change. 

15.2 ................................ 15.2 What terms do I need to know? Additional definitions. 

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

15.4 What are the requirements for my will? New section. 

15.5 Can I revoke my will? New section. 

15.6 Can my will be deemed revoked by the operation 

of the law of any state? 

New section. 

15.7 What is a self-proved will? New section. 

15.8 Can I make my will, codicil, or revocation selfproved? New section. 

15.9 Do affidavits for my self-proved will, codicil, or 

revocation have to be in a certain format? 

New section. 

15.3 ................................ 15.10 Will the Secretary probate all the land or assets in 

an estate? 

Clarifies that the Secretary will probate only the 

trust or restricted property in an estate. 

15.4 ................................ 15.11 How does the probate process work? Administrative changes. 

15.12 What happens if assets in a trust estate may be 

diminished or destroyed while the probate is 

pending? 

New section. 

15.101 ............................ 15.103 How do I begin the probate process? Clarifies whom to contact at BIA to inform of a 

death. 

15.104 Does BIA need a death certificate to prepare a 

probate file? 

Clarifies that a death certificate should be 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 death? Plain language. 

15.103 ............................ 15.101 When should I notify BIA of a death? Plain language. 

15.104, 15.105 ............... 15.105 What other documents does BIA need to prepare 

a probate file? 

Clarifies that certain documents may come from 

an authority other than a court. Adds requirement for: orders requiring payment of spousal 

support; identification of person or entity in 

whose favor an interest is renounced; court 

judgments regarding creditor claims; and place 

of enrollment and tribal enrollment or census 

number of the decedent and potential heirs and 

beneficiaries. Deletes requirement for birth certificate. 

15.106 ............................ 15.201 Can I get funds from the decedent’s IIM account 

for funeral services? 

Plain language. 

15.107 ............................ 15.107 Who prepares a probate file? Incorporates new ‘‘probate staff’’ definition. 

15.108 ............................ 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? 

Redesignated. Plain language. 


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Current citation New citation Title Remarks 

15.106 Can a probate case be opened when an owner of 

an interest has been absent? 

New section. 

15.201 ............................ 15.301 What will BIA do with the documents that I provide? Clarifies that BIA will also examine other documents and information (beyond those provided) 

to prepare a complete probate file and will 

transfer the probate file to OHA. 

15.202 ............................ 15.202 If the decedent owed me money, how do I file a 

claim against the estate? 

Adds requirements to provide certain additional 

information in support of claim. Changes deadline for filing a claim to the conclusion of the 

first hearing rather than 60 days of verification 

of death. 

15.203 ............................ 15.302 What items must BIA include in the probate file? Clarifies what the certified inventory of trust or restricted real property should contain. Adds requirements for supporting documents. 

15.303 When is a probate file complete? New section. 

15.301 ............................ 15.401 What happens after BIA prepares the probate 

file? 

Redesignated. Deletes notification to interested 

parties. 

15.302 ............................ 15.402 What happens after the probate file is referred to 

OHA? 

Adds provisions describing how BIA will handle 

claims it receives after it refers the probate file 

to OHA. 

15.303 ............................ 15.403 What happens after the probate decision is 

made? 

Establishes a 30-day time period to file a written 

request for de novo review, a request for rehearing with the OHA deciding official, or an 

appeal. Establishes that BIA will not pay claims, 

transfer title, or distribute assets pending a de 

novo review, rehearing, or appeal. 

15.401 ............................ 15.501 How can I find out the status of a probate? Clarifies that interested parties may contact the 

BIA agency or regional office. 

15.402 ............................ 15.502 Who owns the records associated with this part? Clarifies that records made by or on behalf of the 

United States are owned by the United States. 

15.403 ............................ 15.503 How must records associated with this part be 

preserved? 

Redesignated. Plain language. 

15.504 Who may inspect these records? Redesignated. Plain language. 

15.505 What information must tribes provide BIA to complete the probate file? Establishes that tribes must provide certain information when necessary to complete a probate 

file. 

15.506 How does the Paperwork Reduction Act affect 

this part? 

New section. 

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 


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Department will provide access to the 

information in the Indian Land Record 

of Title to individual Indians, tribes, 

and the public, except in those 

instances where access would violate 

law or policy restricting access to such 

records. The definition of ‘‘Indian land’’

is clarified to include only lands in trust 

or restricted status and Federal 

government-owned land that is under 

the jurisdiction of the BIA, and not land 

held in fee by Indians or fee land subject 

to the rights, occupancy, and use of 

Indians. 

Subpart B of the proposed rule, The 

Indian Land Record of Title Designation 

as the Official Record of Indian Land, 

designates the Indian Land Record of 

Title as the official record of title 

instruments affecting Indian land. The 

proposed rule clarifies that constructive 

notice of the existence of the title 

instrument is provided by recording the 

instrument in the Indian Land Record of 

Title. Recording instruments with other 

Federal or state offices does not provide 

constructive notice with regard to 

Indian land. 

Subpart C of the proposed rule, LTRO 

Procedures and Requirements to Record 

Instruments in the Indian Land Record 

of Title, designates the LTRO as the 

organization within the Federal 

government that has the responsibility 

to maintain the Indian Land Record of 

Title. This subpart describes the LTRO 

process for receiving and recording title 

and the process for correcting an error 

or omission in an LTRO product or 

service. 

Subpart D of the proposed rule, 

Services and Products of the LTRO, 

describes the types of services and 

products offered by the LTRO. Subpart 

D also proposes charging fees to certain 

parties for the services and products 

provided by LTRO. The proposed fees 

implement the authority contained in 25 

U.S.C. 413 and address a Congressional 

directive, in 31 U.S.C. 9701, for agencies 

to begin charging fees that are fair and 

reasonable based upon the value of the 

service provided by the Federal office. 

Under 25 U.S.C. 14b, the Secretary may 

order that such funds be directed to the 

appropriation account for the LTRO. A 

fee schedule will be published as a 

notice separate from this proposed rule. 

The proposed rule specifies exceptions 

to the fee. 

These proposed provisions will 

provide a greater benefit to individual 

Indians, tribes, and the public through 

clarification of LTRO procedures and 

will improve LTRO’s ability to serve 

beneficiaries. 

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 


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proposal for charging fees for LTRO 

products and services. The Department 

will continue to review ways to 

maximize the efficiency and 

effectiveness of the products and 

services provided by the LTRO and 

consider whether charging fees can 

assist with this effort. The Department 

has removed the fee schedule from the 

text of the regulation and will publish 

it in a separate notice. This will allow 

the Department to revise the fees 

without having to amend the rule. 

LTRO Response Time: During tribal 

consultations, several tribal commenters 

expressed their frustration at what they 

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 this part? Clarifies purpose by expanding on the services 

and products LTRO provides. 

150.2 ................. 150.2 What terms do I need to know? Adds several definitions for clarification. 

150.4 Do I have to be an Indian or a tribe to obtain 

products or services from the Lands Titles 

and Records Office? 

New section. 

150.101 Must all title instruments affecting Indian land 

be recorded in the Indian Land Record of 

Title? 

Designates the Indian Land Record of title as 

the official record of title instruments affecting 

Indian land. Clarifies that recording with the 

Indian Land Record of Title serves as constructive notice that the title instrument exists. 

150.102 Do I have to check with any other governmental 

office to find title instruments to Indian land? 

Clarifies that the Indian Record of Land Title is 

the source of all recorded instruments. 

150.3 ................. 150.201 Who maintains the Indian Land Record of Title? Establishes the LTRO as the office responsible 

for maintaining the Indian Land Record of 

Title. 

150.4 ................. 150.202 Where is the LTRO located? Indicates that the LTRO has locations throughout the United States, and that Bureau offices 

maintain contact information. 

150.5 ................. ........................................ ............................................................................. Deleted. 

150.6 ................. 150.203 Who submits the title instruments for recording? Clarifies that BIA and other government offices 

may submit title documents for recording. Deletes specific reference to the Administrative 

Law Judge submitting probate documents. 

150.204 What does the LTRO do with the instruments 

that it receives? 

Restates the steps LTRO takes when it receives documents. 

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

150.7 ................. 150.206 What if the LTRO discovers a defect or error in 

a document? 

Specifies LTRO procedures to address defects 

or errors discovered after recording. 

150.207 What if a defect or error in a final probate 

record cannot be corrected?.

Restates requirement for LTRO notification to 

deciding official for non-clerical errors in probate records. Establishes that the corrected 

document will be filed in the Indian Land 

Record of Title. Deletes reference to ‘‘Superintendent’’ and Administrative Law Judges. 

150.208 How do I correct an error or omission in a title 

instrument or LTRO product or service? 

New section. 

150.209 What instruments qualify for recording in with 

the LTRO? 

New section. 

150.210 Does the LTRO maintain the original title instruments? New section. 

150.211 May I obtain a copy of the title instrument from 

the LTRO? 

New section. 

150.301 What services and products may I order from 

the LTRO? 

New section. 

150.8 ................. 150.302 How do I order services and products from the 

LTRO? 

Discusses how to order any of LTRO’s services 

and products. 

150.303 Does BIA charge fees for any of the services 

provided by, or products produced by, the 

LTRO? 

New section. 

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


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Current citation New citation Title Remarks 

150.305 How does the Paperwork Reduction Act affect 

this part? 

New section. 

150.9 ................. ........................................ ............................................................................. Deleted. 

150.10 ............... 150.212 Is there any benefit of obtaining a certified copy 

of the title? 

Restates that a certified copy can be used in 

place of an original in court or elsewhere. 

150.11 ............... 150.3 When can I see land and title information from 

the Indian Land Record of Title? 

Clarifies Department policy to allow public access to the Indian Land Record of Title. Deletes provision regarding nondisclosure of 

monetary consideration and provision. 

D. 25 CFR Part 152—Conveyances 

This part establishes the authorities, 

policy, and procedures governing the 

conveyance of trust or restricted land. 

Amendments reorganize this part to 

clarify the different procedures and 

requirements applicable to each type of 

conveyance. The reorganized sections 

incorporate statutory solutions aimed at 

reducing fractionation of interests. One 

such solution, consolidation by sale, is 

newly established by AIPRA. 

Consolidation by sale allows one or 

more eligible bidders to consolidate 

highly fractionated land by buying the 

highly fractionated interests at fair 

market value through a sale conducted 

by the Secretary. The amendments also: 

• Provide instances where consent of 

the trust or restricted co-owner is not 

required to convey a fractional interest, 

making it easier to consolidate interests; 

• Allow conveyance of land within a 

tribe’s jurisdiction without tribal 

consent where the grantor owns 100% 

of the tract; 

• Allow tribes to purchase fractional 

interests of non-consenting trust and 

restricted owners at fair market value 

(tribal tract purchases); and 

• Clarify that the Secretary will have 

a lien on income derived from any 

interest purchased for a tribe under the 

Indian Land Consolidation program in 

the amount of the purchase price, until 

the lien is satisfied or removed by the 

Secretary. 

The reorganization divides this part 

into various subparts. Proposed subpart 

A, General Provisions, provides relevant 

definitions, describes to whom the 

Secretary will provide ownership 

information related to conveyance in 

this part, and establishes the scope of 

the regulations. 

Subpart B, Sales and Exchanges of 

Tribal Trust or Restricted Land, 

addresses sales and exchanges of tribal 

land pursuant to an approved tribal 

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 


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would cause the tribe to submit new 

plans or plan amendments for every 

such transaction. These commenters 

also asserted that this requirement will 

result in significant price inflation and 

force tribes to pay more for those 

targeted tracts than would be the case 

without the proposed pre-identification 

requirement. The Department has 

replaced the requirement for specifically 

identifying sales, purchases, and 

exchanges with a requirement that the 

plan include a description and map of 

the general area of the sales, purchases, 

and exchanges. 

Several tribal commenters opposed 

the requirement for approval of a tribal 

land consolidation plan as an intrusion 

on tribal sovereignty. Submission of a 

tribal land consolidation plan is 

optional and within the tribe’s 

discretion. However, an approved land 

consolidation plan will allow a tribe to 

sell parcels of its trust land in 

connection with an overall plan to 

consolidate its land holdings and/or 

decrease fractionation. Pursuant to 

federal law, sales under an approved 

consolidation plan may also be at 

slightly less than fair market value. If 

the tribe has no plans to sell its trust 

land, though, there is no need for it to 

prepare or submit a land consolidation 

plan for approval. 

Finally, the Department clarified the 

process for sales and exchanges with a 

land consolidation plan and without a 

land consolidation plan. 

Sales and Exchanges: The Department 

revised section 152.210 (section 152.211 

of the preliminary draft) to clarify that 

a grantor may waive the right to be 

notified of fair market value only if the 

grantee is Indian, among the other 

criteria. The Department also deleted 

section 152.212 of the preliminary draft, 

addressing requirements for appraisals 

to determine fair market value because 

the proposed draft instead incorporates 

the requirements into the new definition 

of ‘‘fair market value.’’

Several tribal commenters questioned 

the meaning of the provision, ‘‘trust or 

restricted land may only be conveyed to 

a grantee in unrestricted fee status, 

where all of the trust or restricted 

interests in the tract are being 

conveyed’’ in section 152.205 (section 

152.206 of the preliminary draft). The 

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. 

Current 

citation New 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 ownership information? New section. 

152.4 To whom will the Secretary provide ownership information? New section. 

152.5 Which subparts do not apply to Alaska? New section. 


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Current 

citation New citation Title Remarks 

152.2 ............ 152.101 What transactions are covered by this subpart? Incorporates AIPRA principles 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 consolidation plan include? New section. Lists items that must be included in a tribal land consolidation plan. 

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

152.104 How does the Secretary approve a land consolidation 

plan? 

New section. 

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

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

152.107 In the absence of an approved land consolidation plan, 

how does a tribe get approval for an exchange of 

tribal land? 

New section. 

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

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 non-Indians and Indians 

with whom a special relationship does not exist.

Redesignated. 

152.7 ............ 152.704 Application for certificate of competency ........................ Redesignated. 

152.8 ............ 152.705 Issuance of certificate of competency ............................ Redesignated. 

152.9 ............ 152.801 Certificates of competency to certain Osage adults ....... Redesignated. 

152.10 .......... 152.802 Application for orders removing restrictions, except Five 

Civilized Tribes.

Redesignated. 

152.11 .......... 152.803 Issuance of orders removing restrictions, except Five 

Civilized Tribes.

Redesignated. 

152.12 .......... 152.804 Removal of restrictions, Five Civilized Tribes, after application under authority other than section 2(a) of 

the Act of August 11, 1955.

Redesignated. 

152.13 .......... 152.805 Removal of restrictions, Five Civilized Tribes, after application under authority of section 2(a) of the Act of 

August 11, 1955.

Redesignated. 

152.14 .......... 152.806 Removal of restrictions, Five Civilized Tribes, without 

application.

Redesignated. 

152.15 .......... 152.807 Judicial review of removal restrictions, Five Civilized 

Tribes, without application.

Redesignated. 

152.16 .......... 152.808 Effect of order removing restrictions, Five Civilized 

Tribes.

Redesignated. 

152.17, 

(152.18).

152.203 Who may convey an interest in trust or restricted land? Clarifies who may convey interests with Secretarial approval. 

152.19 .......... .................... .......................................................................................... Deleted. 

152.20 .......... .................... .......................................................................................... Deleted. 

152.21 .......... 152.201 What lands are covered by this subpart? Clarifies scope of subpart. 

152.202 What transactions are covered by this subpart? Clarifies scope of subpart. 

152.22 .......... .................... .......................................................................................... Deleted. 

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

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

152.23 .......... 152.206 How does an owner initiate a negotiated sale, gift, or 

exchange? 

Clarifies what a written request for negotiated sale, gift, 

or exchange must include. 

152.207 Does a conveyance of a fractional interest require the 

consent of the co-owner(s)? 

New section. 

152.208 Is tribal consent required to convey an interest in trust 

or restricted land located within the tribe’s jurisdiction? 

New section. 

152.24 .......... 152.210 When must fair market value be determined and provided to the grantor? Establishes circumstances in which grantor may waive 

right to be provided with information as to the fair 

market value. 

152.25 .......... 152.209 Is payment required for a negotiated sale, exchange, or 

gift? 

Removes restrictions for conveyances at less than fair 

market value because 152.210 entitles the grantor to 

full information regarding the fair market value. 

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

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

152.213 How does the negotiated sale or exchange occur? New section. 

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

152.215 How does an Indian Land Consolidation Program lien 

attach? 

New section. 


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Current 

citation New citation Title Remarks 

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

152.217 When can a co-owner acquire an interest previously 

acquired on behalf of the tribe? 

New section. 

152.218 What if there are liens or other encumbrances on the 

lands to be conveyed? 

New section. 

152.301 What lands are covered by this subpart? New section. 

152.302 What transactions are covered by this subpart? New section. 

152.303 How does a tribe apply for a parcel purchase? New section. 

152.304 How and when will owners be notified of an application 

for tribal parcel purchase? 

New section. 

152.305 Can an individual owner preempt and succeed a tribe’s 

right to purchase? 

New section. 

152.306 How and when will the Secretary review an application 

for parcel purchase? 

New section. 

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

152.401 What terms do I need to know? New section. 

152.402 What lands are subject to consolidation by sale? New section. 

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

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

152.405 What consents are necessary for a consolidation by 

sale? 

New section. 

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

152.407 What action does the Secretary take on comments or 

objections? 

New section. 

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

152.409 How can an owner appeal a consolidation by sale proceeding? Limits discussion of advertising to consolidation by 

sale. 

152.26 .......... 152.410 How will the Secretary notify owners of a sale after appeals have been decided? Limits discussion of advertised sale to consolidation by 

sale. 

152.27 .......... 152.411 Who may participate in an auction or sealed bid sale? New section. 

152.412 How does a tribe reserve its right to match the highest 

bid? 

New section. 

152.28 .......... 152.413 How will the Secretary determine the successful bidder? New section. 

152.29 .......... 152.414 What happens if no bid matches the fair market value? Deletes provisions allowing the Secretary to reject bids. 

152.30 .......... .................... .......................................................................................... Deleted. 

152.415 When must the highest bidder pay for the purchase? New section. 

152.416 How will proceeds be distributed? New section. 

152.417 Is Federal financial assistance available to support a 

bidder’s purchase? 

New section. 

152.418 What title is acquired? New section. 

152.31 .......... .................... .......................................................................................... Deleted. 

152.32 .......... 152.219 How does a transaction affect collection of construction 

costs for irrigation projects? 

Plain language. 

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 this subpart? New section 

152.502 When does this subpart apply? New section. 

152.503 How can an owner initiate a partition action? New section. 

152.504 How will we notify the applicant’s co-owners of an application for partition? New section. 

152.505 How and when will we review an application? New section. 

152.506 When will we execute the conveyance instruments? New section. 

Subpart G—Mortgages and Deeds of Trust 

152.601 What does this subpart do? New section. 

152.602 How do owners submit an application for approval of a 

mortgage or deed of trust? 

New section. 

152.603 How will the Secretary review the application? New section. 

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

152.605 Does the land remain in trust as a result of foreclosure 

or sale? 

New section. 

152.606 How does the Paperwork Reduction Act affect this 

part? 

New section. 


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E. 25 CFR Part 179—Life Estates and 

Present and Future Interests 

This regulation sets forth the 

authorities, policy and procedures 

governing the administration of life 

estates and future interests in Indian 

lands by the Secretary of the Interior. 

Amendments to this part explicitly 

identify the rights and responsibilities 

of the life tenant, and define the life 

tenant’s share of income, contract 

bonuses, and royalties derived from the 

use of the land and the extraction of 

minerals or other resources from the 

land. AIPRA established that life estates 

are ‘‘without regard to waste,’’ meaning 

that the life tenant is entitled to all 

income, contract bonuses, and royalties 

derived from use of the land and 

extraction of resources. The 

amendments to this part incorporate 

this change, providing that all life 

estates created after June 20, 2006, will 

be entitled to all income, contract 

bonuses, and royalties, in the absence of 

an order, conveyance document, or 

written agreement specifying otherwise. 

The amendments delete the Single 

Life Factor table for determining the 

respective values of a life estate and 

remainder share and instead refer to 

Actuarial Table S, Valuation of 

Annuities, obtained from 26 CFR 

20.2031. The amendments also 

eliminate the distinction between the 

genders in determining the value of a 

life estate; the current regulations 

generally value life estates held by 

females higher than those held by 

males. 

New sections address several topics 

that allow the Department to determine 

the type of estate and interest in which 

a beneficial interest may be held, to 

ensure that the holder of a life estate, 

the measuring life for a life estate, the 

holder of a future interest, and class 

members can be ascertained in all cases, 

including when the conveyance 

document or probate order includes 

conditions. The amendments also 

address the termination and 

renunciation of life estates, establish 

why notification to BIA of the death of 

a life tenant is important, and establish 

that term estates will be treated in the 

same manner as life estates for the 

purposes of distributing income, cash 

bonus, and principal. 

Changes From Preliminary Draft 

The Department added several new 

definitions, including ‘‘class,’’

‘‘condition,’’ ‘‘contingent remainder,’’

‘‘conveyance document,’’ ‘‘estate,’’

‘‘executory interest,’’ ‘‘extant person,’’

‘‘grantee,’’ ‘‘grantor,’’ ‘‘holder,’’ ‘‘life 

tenant,’’ ‘‘open class,’’ ‘‘order,’’ ‘‘present 

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 longterm utilization and trust status of the 

land. 

Sale or Leasing of Interests: The 

Department has clarified in proposed 

section 179.9 that the life tenant may 

rent or sell the life estate interest to 

someone else. Additionally, section 

179.10 notes that provisions regarding 

the relationship between a life tenant 

and remainderman do not restrict or 

amend the authority of the Secretary to 

consent on behalf of interest owners to 

the leasing or transfer of Indian land. 

Value of Current Life Estate and 

Remainder: Several tribal commenters 

identified an issue with placing the 

Single Life Factor chart directly into the 

text of the regulation, stating that it will 

be difficult to update. The Department 

has addressed this issue by deleting the 

Single Life Factor chart from the text of 

the regulation and instead referring to 

an existing chart that is frequently 

updated. 

Distribution Table—25 CFR Part 179 

The following distribution table 

indicates where each of the current 

regulatory sections in 25 CFR part 179 

is located in the proposed 25 CFR part 

179. 


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Current 

citation New citation Title Remarks 

179.1 ............ 179.1 What is the purpose of this part? Clarifies that these 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 for a life estate? New section. 

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

179.6 Who can be members of a class? New section. 

179.7 How are interest holders determined if the conveyance 

document or order contains conditions? 

New section. 

179.8 How are members to be determined if there is an open 

class? 

New section. 

179.9 What are the privileges of a life tenant? New section. 

179.10 What is the life tenant’s responsibility to the remainderman? New section. 

179.11 How can a future interest holder stop the life tenant 

from damaging his/her interest and substantially diminishing its value? 

New section. 

179.4 ............ 179.12 How will the Secretary distribute income and principal 

between the life tenant and the remainderman? 

Incorporates AIPRA provisions for life estates created 

after AIPRA’s effective date, providing that these life 

tenants are entitled to all income, principal, contract 

bonuses, and royalties. 

179.5 ............ 179.13 How will the value of a current life estate and remainder be determined? Replaces existing life estate value tables with a reference to one table. Deletes gender as factor affecting life estate values. 

179.14 How does a life estate terminate? New section. 

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

179.16 Why do I need to notify the Secretary about the death 

of a life tenant? 

New section. 

179.17 How will term estates be treated? New section. 

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 coowners of trust or restricted interests to 

exercise the option. 

Changes From Preliminary Draft 

Because a significant number of issues 

on 43 CFR part 4 were identified in 

tribal comments, the following 

discussion addresses the issues by 

subheading in the new 43 CFR part 30. 

Overall: The Department reorganized 

some sections in this subpart to provide 

a better logical flow. For example, the 

Department moved former sections 

4.382 and 4.383, related to the omission 

and improper inclusion of property in 

an estate, to sections 30.126 and 30.127 

under the ‘‘Judicial Authority and 

Duties’’ subheading. Additionally, 

former section 4.216, related to what 

happens when a person dies without a 

will and has no heirs, has been moved 

to section 30.254 under the 

‘‘Miscellaneous’’ subheading. Section 

4.217, related to settlement agreements, 

has been moved to section 30.150, 

under the new subheading 

‘‘Consolidation and Settlement 

Agreements’’ (formerly, this subheading 

included only consolidation 

agreements). Provisions related to tribal 

purchase of interests under special 

statutes (sections 4.290 through 4.304 of 

the preliminary draft) have been moved 

to sections 30.260 through 30.274. The 

Department also added a few sections 

under the ‘‘Renunciation of Interests’’

and ‘‘Summary Probate Proceedings’’

subheadings for clarity. 

The Department and tribal 

commenters identified potential 

confusion regarding references to 

‘‘allocated market value,’’ ‘‘estimated 

market value,’’ and ‘‘appraised market 

value.’’ The Department has addressed 

this issue by deleting references to 

‘‘allocated’’ and ‘‘estimated’’ market 

value and replaced them with 

‘‘appraised’’ market value. 

Several tribal commenters noted that 

while the preliminary drafts established 

timelines for filing an appeal, they did 

not impose any timelines on OHA to 

act. For example, several tribal 

commenters suggested placing a 

deadline on OHA for designating a case 

as appropriate for summary or formal 

hearing and assigning a case to a judge 

10 days after receiving the file from BIA. 

Other tribal commenters suggested 

imposing a timeframe on notifying 


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potential heirs that a probate case has 

been assigned to a judge. Another tribal 

commenter recommended setting time 

periods for holding the hearing and 

issuing a final decision in a probate 

case. The Department has determined 

that, given the variation in complexity 

and resources available, establishing set 

timelines for judges would not be 

feasible. 

Definitions: In response to tribal 

comments, the Department modified the 

current definition of ‘‘interested parties’’

to ensure that tribes and co-owners with 

the option to purchase are included in 

the definition. Several tribal 

commenters were concerned that the 

definition in the preliminary draft was 

too narrow, and would not provide 

notice to persons with an interest. The 

revised definition includes tribes and 

persons with the option to purchase at 

probate and all co-owners. (See 

proposed section 30.102). 

Additionally, the Department revised 

several definitions included in the 

preliminary draft to ensure consistency 

with AIPRA and 25 CFR part 15. The 

Department amended the definition of 

‘‘child’’ to include adopted children, in 

response to tribal comments that 

biological and adopted children should 

be treated equally in the distribution of 

property at probate. The Department 

also amended other terms for precision: 

for example, it changed ‘‘trust financial 

assets’’ and ‘‘cash assets’’ to ‘‘trust 

personalty’’ to encompass both cash and 

securities; it changed ‘‘beneficiaries’’ to 

‘‘devisees,’’ which is a more precise 

term including only those who receive 

under a will; it revised the definitions 

for ‘‘per stirpes’’ and ‘‘de novo’’ for 

clarity; and it deleted the placeholders 

for definitions for ‘‘residing on’’ and 

‘‘pretermitted spouse,’’ having 

determined that meanings for these 

terms are subject to judicial 

determination based on fact-specific 

circumstances. 

Commencement of Probate 

Proceedings: The Department clarified 

in section 30.114 that OHA will provide 

notice of the formal or summary probate 

proceeding and eliminated the 

requirement for BIA to notify potential 

heirs and devisees when it forwards the 

probate file to OHA for consideration 

because sufficient notice is provided by 

OHA upon designation of the case for a 

formal or summary probate proceeding. 

Judicial Authority: The Department 

amended section 4.220 of the 

preliminary draft, relating to the judge’s 

general authority. It is now designated 

as section 30.120. In proposed 

subsection (f), the Department clarifies 

that the probate decision and order, not 

the terms of the sale, determine how the 

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. 


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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. 

Current 

citation New citation Title Remarks 

4.200 ..................... 30.100 How do I use this subpart? Adds updated references. 

30.101 Will the Secretary probate all the land or assets in 

an estate? 

New section. 

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 probate case? Plain language. 

30.111 How does OHA commence a probate case? Plain language. 

30.112 What must a complete probate file contain? Plain language. 

30.113 What will OHA do if it receives an incomplete probate file? Adds that OHA may issue a subpoena for the missing information or proceed with a hearing. 

30.114 What notice of the probate case will OHA send me? Adds that OHA will provide notice upon receipt of 

the probate file. 

30.115 Can I review the probate file? New section. 

4.202 ..................... 30.120 What authority does the judge have in a probate 

case? 

Deletes criteria for when a formal hearing is necessary. Adds new categories of authority. 

30.121 May a judge appoint a master in a probate case? New section. Allows judge to appoint masters. 

30.122 Is the judge required to accept the master’s recommended decision? New section. 

4.206 ..................... 30.123 Will the judge determine matters of status and nationality? Plain language. 

4.204, 4.203 .......... 30.124 Can a judge find a person to be dead by reason of 

unexplained absence? 

Establishes standard for finding that any person is 

dead. 

4.205 ..................... 30.154 What happens when a person dies without a will and 

has no heirs? 

Incorporates AIPRA references. 

4.242 ..................... 30.125 May a judge reopen a probate case to correct errors 

and omissions? 

Plain language. Identifies circumstances in which 

judge may reopen probate case. 

30.130 When must a judge or attorney decision maker 

(ADM) recuse himself or herself from a probate 

case? 

New section. 

30.131 Where may a judge or ADM seek guidance on 

recusal? 

New section. 

30.132 May an interested party to a probate proceeding excuse a judge from hearing a case? New section. 

30.133 May an interested party to a probate proceeding request that a judge recuse? New section. 

30.134 What must the judge consider when deciding whether to recuse? New section. 

30.135 What action will the judge take after deciding to 

recuse himself or herself? 

New section. 

30.136 How will the case proceed once the judge has 

recused? 

New section. 

30.137 Can I appeal the judge’s recusal decision? New section. 

30.138 When can I appeal the judge’s recusal decision? New section. 

4.250(a) ................. 30.140 When must I file a claim against the probate estate? Amends deadline for filing claims. 

4.250(c) ................. 30.141 How must I file a creditor claim against the probate 

estate? 

Eliminates requirement for triplicate filing. Clarifies 

what must be included in the affidavit and itemized 

statement. 

4.250(b) ................. 30.142 Will a judge authorize payment of a claim from the 

trust estate where the decedent’s non-trust estate 

may be available? 

Plain language. 

4.250(d)–(f) ........... 30.143 Are there any categories of claims that may not be 

allowed? 

Adds category for claims attributable to payments for 

general assistance, welfare, or similar assistance. 

4.251(a) ................. 30.144 May the judge authorize payment of the costs of administering the estate? Plain language. 

4.251(b) ................. .................... What are priority claims the deciding official may authorize payment for? Deleted. 

4.251(c) ................. .................... When may the deciding official authorize payment of 

general claims? 

Deleted. 

4.251(d) ................. 30.145 When can a judge reduce or disallow a claim? Plain language. 

4.251(e)–(g) .......... 30.147 What happens if there is not enough money in the 

IIM account to pay all the claims? 

Plain language. 


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Current 

citation New citation Title Remarks 

4.251(h) ................. 30.148 Will interest or penalties charged against claims after 

the date of death be paid? 

Plain language. 

4.252 ..................... 30.146 What property is subject to claims? Plain language. 

4.207 ..................... 30.150 If the interested parties agree to settle matters 

among themselves, what does the judge do? 

Plain language. Deletes reference to liability for irrigation construction and operation costs. Deletes 

provisions regarding preparation, deliverance, and 

approval of deeds. 

30.151 May the devisees or eligible heirs in a probate proceeding consolidate their interests? New section. Adds AIPRA provisions allowing for 

consolidation agreements. 

30.152 May the parties to a settlement agreement or consolidation agreement waive valuation of the trust 

property? 

New section. 

30.153 Is an order approving a consolidation agreement or 

settlement agreement considered a partition or 

sale transaction? 

New section. Clarifies basis and procedures for approval of consolidation agreements. 

30.160 What can be purchased at probate? New section. Incorporates 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 probate remain in trust 

or restricted status? 

New section. 

30.163 Is consent required for a purchase at probate? New section. Adds provisions describing when consent of an heir or devisee is required for a purchase at probate. 

30.164 What must I do to purchase at probate? New section. Adds provisions describing procedure 

for requesting a purchase at probate. 

30.165 Who will OHA notify of a request to purchase at probate? New section. Adds provisions for notification by OHA 

and required contents of the notice. 

30.166 What will the notice of the request to purchase at 

probate include? 

New section. 

30.167 How does OHA decide whether to grant a request to 

purchase at probate? 

New section. 

30.168 What will the judge consider in determining the market value of an interest? New section. Clarifies that a judge must base the 

market value on an appraisal that meets certain 

standards. 

30.169 If I do not agree with the appraised market value, 

what can I do? 

New section. Establishes process for challenging appraisal. 

30.170 What happens when OHA grants a request to purchase at probate? New section. Clarifies the procedures for notifying 

the successful bidder and finalizing the sale. 

30.171 When must the successful bidder pay for the interest 

purchased? 

New section. 

30.172 What happens after the successful bidder submits 

payment? 

New section. 

30.173 What happens to the money from the sale? New section. Clarifies that the Department will distribute the money from the sale to the appropriate 

heirs, devisees, and/or spouse. 

30.174 What happens if the successful bidder does not pay 

within 30 days? 

New section. Clarifies that the sale will be cancelled 

if the successful bidder fails to pay the bid within 

30 days. 

4.208 ..................... 30.180 May I give up an inherited interest in trust or restricted property or trust personalty? Plain language. 

30.181 How do I renounce an inherited interest? Plain language. 

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

30.183 Who may receive a renounced interest of less than 

5 percent in trust or restricted land? 

New section. 

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

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

30.186 Are renunciations that predate the American Indian 

Probate Reform Act of 2004 valid? 

New section. 

4.208(c) ................. 30.187 May I revoke my renunciation? Plain language. 

4.208(b) ................. 30.188 Does a renounced interest vest in the person who 

renounced it? 

Plain language. 

4.212 ..................... 30.200 What is a summary probate proceeding? Deletes provision stating that Federal law or tribal 

code may prevent summary processing. 

30.202 May I request a summary probate proceeding be replaced by a formal proceeding? Changes time period for filing a request for formal 

hearing from 60 days to 30 days. 

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

4.213 ..................... .................... ..................................................................................... Deleted. 


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4.214 ..................... 30.203 What must a summary probate decision contain? Adds provisions regarding renunciation. Deletes provisions regarding dower, curtesy, and homestead, 

and requirement to attach certified inventory of 

trust or restricted lands. Changes time in which 

decision will become final from 60 days to 30 

days. 

4.215(a)–(c) ........... 30.204 How do I seek review of a summary probate proceeding? Changes time period for 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 request for a de novo review? Plain language. 

30.206 What happens if nobody files for a de novo review? New section. Establishes what happens at expiration 

of 30-day period for filing de novo review. 

4.216 ..................... 30.210 How will I receive notice of the formal probate proceeding? Adds locations for posting. Deletes provision establishing that interested parties living near posting 

will be bound by decision. 

30.213 What notice to a tribe is required in a formal probate 

proceeding? 

Expands notice to tribes where there is a statutory 

option to purchase to provide notice to tribe of 

every formal probate proceeding involving trust or 

restricted land over which the tribe has jurisdiction. 

30.211 Will the notice be published in a newspaper? New section. 

30.212 Can I waive notice of the hearing, the time limits, or 

form of notice? 

New section. 

4.217 ..................... 30.214 What must a notice of hearing contain? Plain language. Adds provisions regarding consolidation and renunciation. 

4.220(a), (c) .......... 30.215 How can I obtain documentation related to the probate proceeding? Plain language. Adds provisions. 

4.221(a)–(c) ........... 30.216 How does an interested party obtain permission to 

take depositions? 

Plain language. 

4.221(d)–(g) .......... 30.217 How is a deposition taken? Plain language. 

4.221(h) ................. 30.218 How may the transcript of a deposition be used? Plain language. 

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

4.222 ..................... 30.220 How does an interested party obtain written interrogatories and admission of facts and documents? Plain language. Deletes provision regarding cross-interrogatories. 

4.223 ..................... 30.221 May the judge limit the time, place, and scope of 

discovery? 

Plain language. 

4.224 ..................... 30.222 What happens if a party fails to comply with discovery? Provides that the judge may 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 conference? Plain language. 

4.230 ..................... 30.224 Can a judge compel a witness to appear and testify 

at a hearing? 

Establishes procedure for requesting a subpoena. 

4.231 ..................... 30.225 Are probate hearings open to the public? Clarifies that probate 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 proceeding be under 

oath or affirmation? 

Plain language. 

30.227 Is a record made of formal probate hearings? Plain language. 

4.232 ..................... 30.228 What evidence is admissible at a probate hearing? Clarifies evidentiary admissibility matters.

4.233(a)–(b) .......... 30.229 Is testimony required for self-proved wills or codicils? Moves affidavit language to 25 CFR part 15. Adds 

that judge may order deposition of available attesting witnesses at location reasonably near residence of witness. 

4.233(c) ................. 30.230 What if approval of the self-proved will, codicil or 

revocation is contested? 

Plain language. 

4.234 ..................... 30.231 Who pays witnesses’ costs? Plain language. 

4.235 ..................... 30.232 May a judge schedule a supplemental hearing? Plain language. 

4.236(a) ................. 30.233 What will the official record of the probate case contain? Plain language. 

4.236(b) ................. 30.234 What will the judge do with the original record? Plain language. 

30.235 What happens if a hearing transcript has not been 

prepared? 

Plain language. 

4.240(a) ................. 30.236 What will the judge’s decision in a formal probate 

hearing contain? 

Specifies what decision will contain in intestate case 

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 will the judge provide? Changes time period from 60 to 30 days. 

4.241(a) ................. 30.238 May I file a petition for rehearing if I disagree with 

the judge’s decision in the formal probate hearing? 

Changes time period for filing petition from 60 to 30 

days. Requires judge to forward copy of petition to 

affected agencies. 


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citation New citation Title Remarks 

4.241(b) ................. 30.239 Does any distribution of the estate occur while a petition for rehearing is pending? Plain language. 

4.241(c)–(e) ........... 30.240 How will the judge address a petition for rehearing? Plain language. 

4.241(f) .................. 30.241 Can I submit another petition for rehearing? Clarifies that judge’s 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 decision on a petition for rehearing become final? New section. Establishes that decision does not become final for 30 days. 

4.242 ..................... 30.243 Can a closed probate case be reopened? Changes time for filing petition and measures from 

date error was discovered. Clarifies standard for 

reopening. 

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

30.245 What happens if the judge reopens the case? Eliminates 75-day period for not distributing. 

4.242(h)–(i) ............ .................... ..................................................................................... Deleted. 

30.246 When will the decision on reopening become final? New section. 

4.261 ..................... 30.250 When does the anti-lapse provision apply? Plain language. 

4.262 ..................... 30.251 What happens if an heir or devisee knowingly participates in the willful and unlawful killing of the decedent? Changed from ‘‘feloniously taking a testator’s life’’ to 

comply with AIPRA language. Expands to apply to 

intestate succession. Establishes that person will 

be treated as if predeceased. 

4.270 ..................... .................... ..................................................................................... Deleted. 

4.271 ..................... 30.126 What happens if property was omitted from the inventory of the estate? Plain language. 

4.272 ..................... 30.127 What happens if property was improperly included in 

the inventory of the estate? 

Plain language. 

4.273 ..................... .................... ..................................................................................... Deleted. 

4.281 ..................... 30.252 Can a judge allow fees for attorneys representing interested parties? Plain language. Allows fees for all interested parties, 

except creditors. 

4.282 ..................... 30.253 How must minors or other legal incompetents be 

represented? 

Plain language. 

4.300(a) ................. 30.260 What land is subject to a tribal purchase option at 

probate? 

Plain language. 

4.300(b)–(d) .......... 30.261 What determinations with regard to a tribal purchase 

option will a judge make? 

Plain language. 

4.301 ..................... 30.262 When will BIA furnish a valuation of a decedent’s interests? Plain language. 

4.302(a) ................. 30.263 When is a final decision issued? Plain language. 

4.302(b) ................. 30.264 When may a tribe exercise its statutory option to 

purchase? 

Plain language. 

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

4.303 ..................... 30.266 May a surviving spouse reserve a life estate when a 

tribe exercises its statutory option to purchase? 

Plain language. 

4.304 ..................... 30.267 What if I disagree with the probate decision regarding tribal purchase option? Plain language. 

4.305(a) ................. 30.268 May I demand a hearing regarding the tribal option 

to purchase decision? 

Plain language. 

4.305(b) ................. 30.269 What notice of the hearing will the judge provide? Plain language. 

4.305(c)–(d) ........... 30.270 How will the hearing be conducted? Plain language. 

4.306 ..................... 30.271 How must the tribe pay for the interests it purchases? Plain language. 

4.307(a) ................. 30.272 What are the Superintendent’s duties upon payment 

by the tribe? 

Plain language. 

4.307(b) ................. 30.273 What action will the judge take to record title? Plain language. 

4.308 ..................... 30.274 What happens to income from land interests during 

pendency of the probate? 

Plain language. 

4.320(a) ................. 4.320 Who may appeal a judge’s order on petition for rehearing or reopening? Plain language. 

4.320 (b)(1)–(3) ..... 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. Plain language. 

4.322 What an appeal must contain. Plain language. 

4.320(c) ................. 4.323 Service of the notice of appeal. Plain language. 

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. 


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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 Michele_F_Singer@ios.doi.gov. For 

comments submitted electronically, 

please include the number 1076–AE59 

in the subject line of the message. All 

comments received will be available for 

public inspection at the Department of 

the Interior, 1849 C Street, NW., 

Washington, DC 20240. All written 

comments received by the date 

indicated in the DATES section of this 

notice and all other relevant information 

in the record will be carefully assessed 

and fully considered prior to 

publication of the final rule. Any 

information considered to be 

confidential by the commenter must be 

so identified and submitted in writing. 

The Department of the Interior reserves 

the right to determine the confidential 

status of the information and to treat it 

according to our determination (see 10 

CFR 1004.11). 

The Department has scheduled an 

additional consultation meeting in 

Rapid City, South Dakota on July 27, 

2006, from 8 a.m. to 5 p.m., at the Best 

Western Ramkota Hotel and Conference 

Center. The Department also plans to 

host two additional consultation 

meetings in Billings, Montana on 

August 8, 2006, from 8 a.m. to 5 p.m., 

at the Sheraton Billings Hotel and in 

Minneapolis, Minnesota on August 10, 

2006, from 8 a.m. to 5 p.m., at the 

Ramada Mall of America. All tribal and 

non-tribal persons interested in this 

rulemaking are encouraged to 

participate in these consultations. 

VI. Procedural Requirements 

A. Regulatory Planning and Review 

(Executive Order 12866) 

Executive Order 12866 (58 FR 51735, 

October 4, 1993) requires Federal 

agencies taking regulatory actions to 

determine whether that action is 

‘‘significant.’’ Agencies must submit 

regulatory actions that qualify as 

‘‘significant’’ to the U.S. Office of 

Management and Budget (OMB) for 

review, assess the costs and benefits of 

the regulatory action, and fulfill other 

requirements of the Executive Order. A 

‘‘significant regulatory action’’ is one 

that is likely to result in a rule that may 

meet one of the following four criteria: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect, in a material way, the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of the recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. 

OMB has determined that the rule is 

not a significant rule under Executive 

Order 12866 because it is not likely to 

result in a rule that will meet any of the 

four criteria. 

(1) The rule will not have an annual 

effect on the economy of $100 million or 

more or adversely affect, in a material 

way, the economy, a sector of the 

economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local, or tribal 

governments or communities. 

This rule will not have an annual 

effect on the economy of $100 million 

or more, as described below. The 

following discussion individually 

addresses each Code of Federal 

Regulations (CFR) part and significant 

changes within each part, where 

appropriate. Within the discussion of 

each CFR part is a brief statement of the 

major changes, the baseline (i.e., the 

current state of affairs), an analysis of 

the economic effect of the change in 

comparison to the baseline alternative, 

and a brief conclusion. 

25 CFR Part 15 

This part governs the processing of 

probate estates by BIA. Amendments 

will ensure that the BIA compiles 


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sufficient information into the probate 

file so that when BIA passes the probate 

file on to OHA, OHA can properly 

administer the probate estate. The 

baseline for this analysis is the existing 

part 15, which does not incorporate 

requirements for certain items of 

information to be included in the 

probate file. 

The Secretary has sole statutory 

authority to probate Indian estates. 25 

U.S.C. 372; First Moon v. White Tail & 

United States, 270 U.S. 243, 46 S. Ct. 

246, 70 L. Ed. 565; United States v. 

Bowling, 256 U.S. 484, 41 S. Ct. 561, 65 

L. Ed. 1054; Lane v. United States, 241 

U.S. 201, 36 S. Ct. 599, 60 L. Ed. 956; 

Hallowell v. Commons, 239 U.S. 506, 36 

S. Ct. 202, 60 L. Ed. 409. Bertrand v. 

Doyle, 36 F.2d 351 (10th Cir. 1929). As 

such, it is imperative that the Secretary 

have all the information necessary to 

properly determine the heirs and 

distribute estate assets. The alternative 

to these amendments (i.e., the baseline) 

would deprive OHA of the information 

it needs to accurately identify what 

property is part of the estate, who the 

heirs and devisees are, and how the 

property should be distributed among 

the heirs and devisees. The recently 

enacted AIPRA amendments to ILCA, 25 

U.S.C. 2201 et seq., affects the 

determination of how property should 

be distributed among the heirs and 

beneficiaries by allowing certain 

persons to purchase interests in 

property at probate and consolidation 

agreements, and affecting who can 

inherit a small fractional interest. 

AIPRA therefore directly affects the 

determinations that OHA will make and 

requires additional information to be 

included in the probate file. 

The primary benefit of the 

amendments is that they ensure that 

OHA will have the information it needs 

in the probate file to adjudicate Indian 

estates. Because this part addresses only 

internal processes, and does not impose 

any enforceable obligation on persons 

outside the BIA, there is no effect to the 

outside economy. Amendments to this 

part focus on the BIA’s procedures in 

compiling a complete probate file, and 

addressing what should be included in 

that file. No economic impact is 

associated with these internal processes. 

25 CFR Part 150 

The revised Part 150 provides 

clarification of the LTRO’s procedures 

and increases the ability of the LTRO to 

provide services and products to 

Indians, tribes, and the public. 

Specifically, the amendments describe 

the LTRO process for receiving and 

recording title instruments, clarify what 

services and products LTRO provides, 

and clarify what documents qualify as 

title instruments. Currently, the 

regulations do not clearly define the 

procedures, products, and services of 

the LTRO. Finally, the amendments 

provide a schedule of fees for nonprobate LTRO products and services 

that will be charged. 

Those parts of the regulation that 

describe the processes, services, and 

products of the LTRO will have no 

effect on the economy. The amendments 

that establish fees for LTRO services and 

products are comparable to those fees 

charged by local governments for the 

comparable services and products. 

These amendments merely redistribute 

the costs by requiring fees normally 

paid for by the public at large to be 

borne by the individuals, other than the 

excepted categories of individuals, 

directly benefiting from the service or 

product. Therefore the effect, if any, on 

the economy resulting from these 

amendments is minimal. 

For these reasons, the amendments to 

part 150 will not have an effect on the 

economy. 

25 CFR Part 152 

Amendments to this part reorganize 

subparts and sections within subparts 

for clarity. Procedures for each of the 

following conveyances are now 

clarified: 

• Allowing for conveyances at less 

than fair market value under certain 

circumstances (see § 152.109); 

• Tribal option to purchase where 

land is proposed to be conveyed in 

unrestricted fee (see § 152.206); 

• Conveyances of fractional interests 

without tribal consent under certain 

circumstances. Also, tribal options to 

purchase interests being sold, gifted or 

exchanged by individual Indians where 

the tribe has enacted a law that imposes 

such a requirement (see § 152.209); 

• Tribal tract purchases of fractional 

interests of non-consenting owners (see 

Subpart D at § 152.302); and 

• Eligibility for conveying trust and 

restricted land (see § 152.203). 

Additionally, the amendments 

implement ILCA policy goals and 

AIPRA provisions allowing for: 

• Conveyances in accordance with 

tribal land consolidation plans (see 

subpart B at § 152.101); 

• Consolidation of highly fractionated 

tracts by purchase of interests at fair 

market value (see subpart E at 

§ 152.401); and 

• Partition of fractionated lands to 

unitize interests (see subpart F at 

§ 152.501). 

The amendments also detail eligibility 

for conveying trust and restricted land, 

conveying trust and restricted land at 

less than fair market value, the 

attachment and removal of Indian Land 

Consolidation Program liens, and the 

procedures for mortgages and deeds of 

trust. 

The baseline for this analysis is the 

current part 152, which does not 

incorporate AIPRA’s provisions 

advancing consolidation goals. The 

current part 152 allows for partition of 

inherited allotments but does not extend 

partition to other tracts of trust or 

restricted land or tracts in which 

fractional interests are held in 

unrestricted fee status. 

a. Tribal Land Consolidation Plans 

Amendments to part 152 add 

provisions regarding tribal land 

consolidation plans by providing that 

the Secretary will approve only: (1) 

Those exchanges and negotiated sales of 

tribal land that are made pursuant to an 

approved land consolidation plan and 

in which the tribe receives at least 90% 

of the fair market value or greater; and 

(2) those exchanges made in the absence 

of a land consolidation plan in which 

the tribe receives the fair market value 

or greater. Part 152 restricts the tribe’s 

use of consideration received from 

negotiated sales and exchanges in 

accordance with a tribal land 

consolidation plan to the purchase of 

other lands as described in the tribal 

consolidation plan. 

These changes from the existing 

regulation will assist tribes in reducing 

fractionation and strengthening their 

land base. A tribal consolidation plan 

must include the following elements: a 

description of the land; maps depicting 

the land to be conveyed and interests to 

be purchased; an explanation of how the 

plan will reduce fractionation; and an 

appropriate tribal authorization. The 

cost to the tribe of putting together a 

tribal consolidation plan is estimated to 

be $2,500. The Secretary is encouraging 

all Federally recognized tribes to 

prepare a tribal land consolidation plan. 

Thus, the total cost resulting from the 

plan requirement for each of the 562 

tribes will be $1.4 million. However, 

tribes will likely prepare and submit the 

plans over a period of at least ten years, 

resulting in an annual cost to tribes of 

$140,000. This cost is slightly 

overestimated because some tribes 

already have a land consolidation plan. 

b. Tribal Option To Purchase Where 

Land Is Conveyed in Unrestricted Fee 

The amendments grant tribes the 

opportunity to purchase trust or 

restricted lands being proposed for 

transfer out of trust or to unrestricted 

status. The benefit of this provision is 

that it strengthens tribal land holdings. 


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There are no apparent costs related to 

this option, as the grantor will receive 

consideration for the interest being 

conveyed. Additionally, an exception is 

provided for those instances where the 

interest is part of a family farm. 

c. Consent for Conveyances 

The amendments provide that an 

owner may convey his or her fractional 

interest without the consent of coowners and that owners of 100% of the 

interests in a tract do not need the 

consent of the tribe. These provisions 

grant individuals the right to control 

conveyances of their interests. The 

benefit of these provisions includes 

strengthening individual Indians’

abilities to convey and consolidate 

fractional interests. The co-owners share 

in this benefit. Additionally, 

marketability of the land interests is 

increased with removal of the consent 

requirement. There is no cost to these 

provisions because the land remains in 

trust status. 

These amendments also require tribal 

consent for conveyance of a fractional 

interest where the tribe has an approved 

tribal probate code restricting the 

inheritance rights of the grantee. This 

provision strengthens tribal control over 

land within its jurisdiction. No apparent 

costs are associated with this provision. 

d. Tribal Tract Purchases 

The tribal tract purchase amendments 

implement provisions of AIPRA 

authorizing the Secretary to convey the 

fractional interests of any nonconsenting trust and restricted owners 

to a tribe, where the tribe owns at least 

50% of the trust or restricted interests 

in the tract or has obtained the consent 

of the owners of at least 50% of such 

interests. 

These provisions increase tribes’

ability to obtain and consolidate 

fractional interests. Ultimately, this will 

grant the tribes more economic power 

through land holdings. Additionally, 

individual interests held in trust and 

restricted status are subject to 

restrictions on transfer. The cost of 

restricting free transfer without the 

approval of the Secretary or tribe affects 

the value of the interest. The value of 

land is not affected by the percentage of 

consent required, except to the degree 

that the time in which transfer occurs 

may be lessened by reducing the 

percentage required, thus increasing 

marketability. 

e. Consolidation by Sale of Highly 

Fractionated Tracts 

Consolidation by sale applies to trust 

and restricted lands, on or off 

reservation, that are highly fractionated 

parcels. In order to consolidate by sale, 

an eligible applicant must obtain certain 

consents including consent of the 

owners of at least 50% of the undivided 

interests in the parcel. Consolidation of 

highly fractionated parcels by sale will 

increase individual Indians’ and tribal 

land holdings, providing them with 

greater economic power and use of land. 

As stated above, individual interests 

held in trust and restricted status are 

subject to restrictions on transfer. The 

cost of restricting free transfer without 

the approval of the Secretary or tribe 

affects the value of the interest. The 

value of land is not affected by the 

percentage of consent required, except 

to the degree that the time in which 

transfer occurs may be lessened by 

reducing the percentage required, thus 

increasing marketability. 

Allowing consolidation by sale is 

expected to reduce the proportion of 

highly fractionated interests. The 

cumulative transfers of property 

achieved via consolidation by sale is not 

expected to impact the economy. 

However, economic benefits are 

expected to accrue by allowing owners 

greater economic power and control of 

the use of their land. 

f. Partition in Kind 

This subpart authorizes the Secretary 

to subdivide trust and restricted land 

with multiple owners into smaller tracts 

in which the interests of the owners are 

unified or consolidated, where the 

owners have been unable to accomplish 

such a partition in kind by exchange of 

deeds. Any owner of a fractional interest 

may apply to the Secretary for a 

partition. This new subpart will provide 

owners with greater control over their 

land; there is no apparent effect on the 

economy. 

g. Eligibility for Conveying and 

Receiving Individually Owned Interests 

in Trust or Restricted Status 

The amendments clarify that 

individual Indians (or their guardians, 

etc.) may convey lands and that only 

tribes, individual Indians, and other coowners in trust or restricted status may 

acquire individually owned trust or 

restricted land. This clarification is 

made to ensure that individual Indians 

without a tribal land base are permitted 

to convey and receive interests in trust 

or restricted status. This provision will 

have no economic effect. 

h. Conveyance of Individually Owned 

Interests at Less than Fair Market Value 

The amendments remove restrictions 

on conveying individually owned 

interests at less than fair market value, 

as long as the grantor is provided with 

information regarding the fair market 

value. This will increase the ability of 

individuals to sell their land as they 

choose. Additionally, these 

amendments make land interests more 

marketable by reducing the restrictions 

on transfer. The cost of obtaining 

information on fair market value was 

already required, so the amendments 

add no new costs. 

i. Attachment and Removal of Indian 

Land Consolidation Program Liens 

These amendments implement AIPRA 

provisions regarding the Indian Land 

Consolidation program liens, in which a 

lien in the amount of the purchase price 

attaches to income derived from any 

interest purchased through the Indian 

Land Consolidation Program. This 

provision has no apparent costs as the 

lien is removed upon satisfaction. 

j. Mortgages and Deeds of Trust 

These amendments detail existing 

procedures by which the Secretary 

approves mortgages or deeds of trust 

encumbering individually owned land, 

where all of the trust or restricted 

interests in a tract are being encumbered 

and made subject to foreclosure or sale 

in the event of a default on the loan 

being secured by the approved 

document. There is no quantifiable 

effect on the economy because the title 

remains in trust even if foreclosure 

occurs. 

Cumulatively, part 152 will not have 

a significant or quantifiable effect on the 

economy. 

25 CFR Part 179 

Amendments to part 179 make two 

primary changes with potential to affect 

the economy: 

• Incorporates AIPRA’s requirement 

that life estates after June 20, 2006, will 

be ‘‘without regard to waste,’’ meaning 

that the life tenant is now entitled to 

receipt of all income—including rents 

and profits, such as contract bonuses 

and royalties, and the interest on 

invested principal—from the land. 

However, the testator can still specify in 

the conveyance document distributions 

to the life tenant and remaindermen 

different from those established by 

AIPRA. 

• Changes the discount rate to make 

it consistent with the Internal Revenue 

Service’s valuations of life estate, which 

will generally provide the 

remaindermen with more value than 

under the current 6% discount rate. 

The existing part 179 provides that 

the life tenant will have the rights to all 

rents and profit, as income, from the 

estate, but did not provide that such 

rights were ‘‘without regard to waste.’’


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Therefore, the existing part 179 required 

the life tenant to ensure that it did not 

diminish the estates of the 

remainderman in its pursuit of rents and 

profits. Additionally, the existing part 

179 required contract bonuses to be split 

one-half each to the life tenant and 

remainderman, whereas now the life 

tenant is entitled to the full amount of 

the contract bonus. 

The first primary change to part 179 

is necessary to reflect the AIPRA section 

establishing that life estates will be 

determined ‘‘without regard to waste,’’

meaning that the life estate holder is 

entitled to the receipt of all income, 

including bonuses and royalties, from 

such land, to the exclusion of 

remaindermen. See 25 U.S.C. 2201(10), 

2205(a)(3), 2206(a)(2). These 

amendments comply with the 

provisions of AIPRA with respect to life 

estates after June 20, 2006. The testator 

can still specify in the conveyance 

document distributions to the life tenant 

and remaindermen different from those 

established by AIPRA. There is no 

change with respect to life estates 

created before June 20, 2006. 

Amendments to the discount rate 

make the rate consistent with the 

Internal Revenue Service’s valuations of 

life estate, which will generally provide 

the remaindermen with more value than 

under the current 6% discount rate. 

The cost of amendments 

incorporating ‘‘without regard to waste’’

provisions could be a deferred value of 

the remaindermen’s estate. However, 

amendments to the discount rate will 

generally provide remaindermen with 

more value. These amendments may 

affect the timing of the distribution of 

the value of the land between life 

tenants and remaindermen, but will not 

affect the economy as a whole. 

For these reasons, part 179 will not 

have a measurable effect on the 

economy. 

43 CFR Parts 4 and 30 

Most amendments to 43 CFR part 4 

(including those incorporated in the 

new part 30) are amendments to the 

existing 43 CFR 4 subpart D, relating to 

the administration of probate estates. 

The amendments add provisions to 

establish procedures for renouncing an 

interest, consolidating interests by 

agreement, requesting and conducting a 

purchase at probate, determining fair 

market value, requesting 

disqualification of a judge, and 

standardizing the time periods for filing 

requests for de novo review and 

rehearing to 30, rather than 60, days. 

The existing 43 CFR part 4 does not 

contain any of the methods for acquiring 

interests at probate that have recently 

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. 


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Additionally, subpart K of part 152 

allows for the partition of lands into 

smaller parcels where the interests are 

unified. Under ILCA, grants are 

available to successful bidders for 

partitions; however, the amendments do 

not affect the grants. Because 

conveyance of trust and restricted 

interests is generally voluntary, these 

amendments do not involve 

entitlements, grants, user fees, or loan 

programs, and therefore do not affect the 

budget of the Department or the rights 

and obligations of recipients. 

(e) In 25 CFR part 179, the respective 

rights of a life estate tenant and 

remaindermen are changed, as of June 

20, 2006. This change entitles the life 

tenant to receipt of all income—

including rents and profits, such as 

contract bonuses and royalties—from 

the land. However, the testator can still 

specify in the conveyance document 

distributions to the life tenant and 

remaindermen different from those 

established by AIPRA. The Department 

anticipates that this change in rights 

will not impact the budget. 

(f) The new regulation addressing 

tribal probate codes will not materially 

alter the Department’s budget because 

the regulation merely implements the 

existing statutory requirement for 

Departmental review of tribal probate 

codes; nor does the regulation affect the 

rights and obligations of recipients, as 

tribes’ probate codes were already 

subject to Departmental review. 

(4) This rule does not raise novel legal 

or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. 

Most of the regulatory changes 

directly implement statutory provisions 

and court orders that require certain 

action to meet Indian trust management 

responsibilities. Specifically, the rule 

implements requirements of AIPRA, the 

Trust Fund Management Reform Act of 

1994 and court orders. The legal and 

policy issues related with this 

rulemaking have been the subject of 

legislation, judicial action, and 

consultations with tribes. They have 

been thoroughly discussed through the 

process of developing and 

implementing the Fiduciary Trust 

Model, discussed in the ‘‘History of the 

Rule’’ section of the preamble. 

Thus, the impact of the rule is 

confined to the Federal Government, 

individual Indians, and tribes and does 

not impose a compliance burden on the 

economy generally. Accordingly, this 

rule is not a ‘‘significant regulatory 

action’’ from an economic standpoint, 

nor does it otherwise create any 

inconsistencies or budgetary impacts to 

any other agency or Federal program. 

B. The Regulatory Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.), requires Federal 

agencies to conduct a regulatory 

flexibility analysis when publishing a 

notice of rulemaking for any proposed 

or final rule. The regulatory flexibility 

analysis determines whether the rule 

will have a significant economic effect 

on a substantial number of small entities 

(i.e., small businesses, small 

organizations, and small governmental 

jurisdictions). Indian tribes are not 

considered to be small entities for the 

purposes of the Act and, consequently, 

no regulatory flexibility analysis has 

been done to address the effects on 

Indian tribes. 

Because the proposed rule is limited 

to probated estates, land, and assets 

within the United States and within 

tribal communities, it will not have 

significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of the U.S.-based enterprises to compete 

with foreign-based enterprises. 

Accordingly, this proposed rule will not 

have an economic impact on a 

substantial number of small entities and 

requires no regulatory flexibility 

analysis. 

C. Small Business Regulatory 

Enforcement Fairness Act of 1996 

The Small Business Regulatory 

Enforcement Fairness Act of 1996 

(SBREFA), 5 U.S.C. 804(2), sets criteria 

for determining whether a rule is 

‘‘major.’’ A rule is ‘‘major’’ if OMB finds 

that the rule will result in: (1) An 

annual effect on the economy of $100 

million or more; (2) a major increase in 

costs or prices for consumers, 

individual industries, Federal, state, or 

local government agencies, or 

geographic regions; or (3) significant 

adverse effects on competition, 

employment, investment, productivity, 

innovation, or the ability of U.S.-based 

enterprises to compete with foreignbased enterprises. 

The proposed rule is not ‘‘major’’

within the meaning of SBREFA because 

it is exclusively confined to the Federal 

Government, individual Indians, and 

tribes, but the proposed rule may 

require some limited additional 

expenditures by tribes, as discussed in 

subsection (h) of the procedural 

requirements (Paperwork Reduction 

Act) of this preamble. 

However, the proposed rule will not 

result in the expenditure by State, local, 

or tribal governments, in the aggregate, 

or by the private sector of $100 million 

or more in any one year. 

Because the proposed rule is limited 

to probated estates, land, and assets 

within the United States and within 

tribal communities, it will not have 

significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of the U.S.-based enterprises to compete 

with foreign-based enterprises. 

Accordingly, this proposed rule will not 

have an economic impact on a 

substantial number of small entities and 

requires no regulatory flexibility 

analysis. 

D. Unfunded Mandates Reform Act of 

1995 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, requires Federal agencies to 

assess the effects of their regulatory 

actions on state, local, and tribal 

governments and the private sector. If 

the Federal agency promulgates a 

proposed or final rule with ‘‘Federal’’

mandates that may result in 

expenditures by state, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year, the Federal agency 

must prepare a written statement, 

including a cost-benefit analysis of the 

rule, under section 202 of the UMRA. 

The term ‘‘Federal mandate’’ means any 

provision in statute or regulation or any 

Federal court ruling that imposes ‘‘an 

enforceable duty’’ upon state, local, or 

tribal governments, and includes any 

condition of Federal assistance or a duty 

arising from participation in a voluntary 

Federal program that imposes such a 

duty. 

The Department has determined that 

the rule does not contain a Federal 

mandate that may result in expenditures 

of $100 million or more for state, local, 

and tribal governments in the aggregate, 

or by the private sector in any one year. 

The following discussion addresses 

each CFR part individually to identify 

Federal mandates. 

25 CFR Part 15 

Most amendments to part 15 address 

the internal processes of the BIA (or 

tribe that has compacted or contracted 

to fulfill probate functions) in compiling 

probate files. 

• Part 15 contains a mandate for tribal 

governments to provide information 

when necessary to complete a probate 

file. This provision is aimed at requiring 

tribes to provide information that is 

already readily available to them, such 

as family history data. 

• Part 15 also contains a mandate for 

the public, presumably someone closely 


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associated with the decedent, to provide 

either a death certificate or other 

information regarding the death. 

Subsection (h) of the procedural 

requirements (Paperwork Reduction 

Act) of this preamble states the expected 

increase in cost burden on tribal 

governments of these mandates, which 

is minimal. The opportunity for tribes to 

adopt their own tribal probate codes is 

voluntary and does not qualify as a 

Federal mandate. 

25 CFR Part 150 

The revised part 150 clarifies LTRO 

processes, services, and products. This 

part requires persons requesting LTRO 

services and products to provide certain 

information to allow the LTRO to 

identify the property for which the 

service or product is being requested. 

There is no mandate to obtain LTRO 

products or services, so the requirement 

to provide information in support of a 

request for products and services is not 

a Federal mandate. 

25 CFR Part 152 

Amendments to part 152 provide 

tribes and individual Indians with 

opportunities to convey and consolidate 

their interests in trust or restricted land. 

The opportunities to convey land 

interests are essentially a voluntary 

Federal program. Therefore, the 

requirement does not equate to a 

Federal mandate. 

Part 152 requires applicants to 

include certain information in 

applications for acquisitions and 

conveyances that are available from the 

LTRO. Items required under part 152 

that may be available from the LTRO 

include: 

• Maps. 

• Legal description of the land. 

• Title status of other interests. 

• Location of roads and rights of way. 

• Location of the land with respect to 

other lands in which the applicant has 

a trust interest. 

However, these items are available 

from sources other than LTRO, so these 

requirements do not require applicants 

to obtain products from the LTRO, and 

therefore do not translate into Federal 

mandates. 

25 CFR Part 179 

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 


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agency from issuing a regulation that 

has Federal implications, imposes 

substantial direct compliance costs on 

state and local governments, and is not 

required by statute. Such a regulation 

may be issued only if the Federal 

Government provides the funds 

necessary to pay the direct compliance 

costs incurred by state and local 

governments, or the agency consults 

with state and local officials early in the 

process of developing the proposed 

regulation. Further, a Federal agency 

may issue a regulation that has 

federalism implications and preempts 

state law only if the agency consults 

with state and local officials early in the 

process of developing the proposed 

regulation. 

This proposed rule does not have 

federalism implications because it 

pertains solely to Federal-tribal relations 

and will not interfere with the roles, 

rights, and responsibilities of the States. 

The proposed rule primarily provides 

means for improving the trust 

relationship between the Department 

and individual Indians by allowing the 

Department to better serve 

beneficiaries’’ interests. Additionally, 

the Federal government and the tribes 

have a government-to-government 

relationship that is independent of and 

does not affect the Federal government’s 

relationship to the states or the balance 

of power and responsibilities among 

various levels of government. Therefore, 

in accordance with Executive Order 

13132, it is determined that this 

proposed rule will not have sufficient 

federalism implications to warrant the 

preparation of a federalism assessment. 

G. Civil Justice Reform (Executive Order 

12988) 

Executive Order 12988 (61 FR 4729, 

February 7, 1996), section 3(a), requires 

Federal agencies to adhere to the 

following requirements: (1) Eliminate 

drafting errors and ambiguity; (2) write 

regulations to minimize litigation; (3) 

provide a clear legal standard for 

effective conduct rather than a general 

standard and promote simplification 

and burden reduction. Section 3(b) 

specifically requires that executive 

agencies make every reasonable effort to 

ensure that the regulations: (1) Clearly 

specify any preemptive effect; (2) clearly 

specify any effect on existing Federal 

law or regulation; (3) provide a clear 

legal standard for affecting conduct 

while promoting simplification and 

burden reduction; (4) specify the 

retroactive effect, if any; (5) adequately 

define key terms; and (6) address other 

important issues clearly affecting clarity 

and general draftsmanship under any 

guidelines issued by the Attorney 

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 ‘‘selfprove’’ their wills each year, 

approximately 2,000 witnesses will be 

required to file supporting affidavits at 

0.5 hours each = 1,000 burden hours. 

This represents an increase of 1,000 

burden hours due to program change 

with no annualized startup, or 

operations and maintenance costs. 

Section 15.104 Does BIA need a death 

certificate to prepare a probate file? 

The proposed rule adds a requirement 

for persons unable to provide a death 

certificate to provide as much as they 

know about the deceased, including: 

The state, city, reservation, location, 

date, and cause of death, the last known 


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address of the deceased, and names and 

addresses of others who may have 

information about the deceased. If no 

death certificate exists, they must 

provide this information in an affidavit. 

This information will ensure that BIA 

has the information it needs regarding 

the identity of the deceased to collect 

documents for the probate file. The 

requirement already existed to provide 

a death certificate or, when unable to 

provide a death certificate because none 

existed, newspaper articles, obituary, or 

death notices and a church or court 

record. 

The Department estimates that 

preparing the affidavit in lieu of 

providing a death certificate will impose 

an additional 1 hour burden per 

response to comply with this section. 

The existing estimated burden for 

locating and providing the death 

certificate is 4 hours per response. 

Assuming a respondent provides an 

affidavit in lieu of a death certificate 

only after spending the 4 hours 

searching unsuccessfully for the death 

certificate, 5 total burden hours per 

response are required to comply with 

this section. Assuming approximately 

5,850 probates per year, the total burden 

will be 5,850 responses × 5 hours per 

response = 29,250 burden hours. This 

represents an increase of 5,850 hours 

due to a programmatic change, with no 

annualized startup, or operations and 

maintenance costs. 

Section 15.105 What other documents 

does BIA need to prepare a probate file? 

This section lists the items that BIA 

needs to prepare a probate file. The 

decedent’s family and other 

knowledgeable members of the public 

are the most likely respondents for this 

information. The proposed rule adds 

several items of information that must 

be included in the probate file. These 

additional items are: (1) Adoption and 

guardianship papers concerning 

decedent’s potential heirs or 

beneficiaries; (2) orders requiring 

payment of spousal support; (3) 

identification of person or entity to 

whom an interest is renounced; (4) court 

judgments regarding creditor claims; 

and (5) place of enrollment and tribal 

enrollment or census number of the 

decedent and potential heirs and 

beneficiaries. 

The Department estimates that 

providing these documents will add 

approximately 1.25 hours to each 

response. Assuming 21,235 respondents 

annually × 45.5 hours to complete this 

section = 966,192.5 burden hours. This 

is an increase of approximately 

26,543.75 hours due to a program 

change, with no annualized startup, or 

operations and maintenance costs. 

Section 15.201 Can I get funds from 

the decedent’s IIM account for funeral 

services? 

There has been no change to the 

information collection requirements in 

this section. The Department estimates 

that there will be one request for funeral 

expenses per each of the estimated 

5,850 probates per year, at an estimated 

2 hours per response = 11,700 burden 

hours, with no annualized startup, or 

operations and maintenance costs. 

Section 15.202 If the decedent owed 

me money, how do I file a claim against 

the estate? 

The proposed rule adds a requirement 

that creditors provide information on 

their claims. Specifically, the rule 

requires creditors to file with the 

Secretary an affidavit and an itemized 

statement of the debt, including copies 

of any documents (such as signed notes, 

mortgages, account records, billing 

records, and journal entries) necessary 

to prove the indebtedness. 

The Department estimates that, on 

average, approximately 6 creditor claims 

per probate estate will be filed and that 

it will take creditors approximately 0.5 

hours to provide this information. The 

most recent Paperwork Reduction Act 

submission purported to assume that 6 

claims per probate estate would be filed, 

but at 5,850 probates per year, the 

previous assumption of 127,410 

respondents appears to be erroneous. 

Assuming 35,100 responses (6 claims 

per probate estate × 5,850 probate 

estates), the Department estimates the 

burden hours = 35,100 responses × 0.5 

= 17,550 burden hours. This is a 

decrease of approximately 46,155 hours 

due to a program change, with no 

annualized startup, or operations and 

maintenance costs. 

The proposed rule also adds a 

requirement for the person filing a claim 

against the estate to file an affidavit. The 

Department has determined that this 

does not qualify as ‘‘information’’ under 

5 CFR 1320.3(h)(1) because it entails no 

burden other than that necessary to 

identify the claimant, the date, the 

claimant’s address, and the nature of the 

instrument as a claim against the estate. 

Section 15.403 What happens after the 

probate decision is made? 

This section provides that a request 

for de novo review may be filed within 

30 days of a probate decision. The 

information collection requirements that 

had been included in this section have 

been moved to 43 CFR 4, but are exempt 

under 5 CFR 1320.4(a)(2) because they 

relate to the conduct of administrative 

actions against specific individuals. 

Additionally, all that is required is the 

filing of a notice of appeal. This 

represents a decrease of 53,088 hours 

due to a program change. 

Section 15.505 What information must 

tribes provide BIA to complete the 

probate file? 

This new section requires tribes to 

provide any information the Secretary 

requires to complete the probate file, 

such as enrollment or family data. The 

information required by the Secretary 

will include documents that the tribe 

should have readily available. We 

assumed that, of the 5,850 probate cases, 

at least one decedent would come from 

each of the 562 Federally recognized 

tribes. On average, a tribe will have to 

provide information for approximately 

10 of the 5,850 probate cases per year. 

We estimate that each tribe will require 

2 hours to assist in completing the 

probate file × 10 responses annually × 

562 Federal recognized tribes = 11,240 

hours to ensure completion of probate 

files. This is a new requirement, which 

incorporates 11,240 hours as a program 

change, with no annualized startup, or 

operations and maintenance costs. 

Note: The ‘‘Old CFR Section’’ numbers in 

the table below are those as of the last 

Paperwork Reduction Act submission for 25 

CFR part 15 in December 2003. 

Old CFR 

section 

New CFR 

section 

Description of info collection requirement No. of resps 

per yr 

Hours per 

resp 

Total hours 

requested 

(Annual)* 

Currently 

approved 

hours 

Explanation of difference 

15.4 File affidavit to self-prove 

will, codicil, or revocation.

1,000 0.5 500 0 New section requires testator affidavit to selfprove will. 

15.4 File supporting affidavit to 

self-prove will, codicil, 

or revocation.

2,000 0.5 1,000 0 New section requires witness affidavits to selfprove will. 


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Old CFR 

section 

New CFR 

section 

Description of info collection requirement No. of resps 

per yr 

Hours per 

resp 

Total hours 

requested 

(Annual)* 

Currently 

approved 

hours 

Explanation of difference 

15.101 ........... 15.104 Reporting req.-death certificate.5,850 5 29,250 23,400 New section requires 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 

(1⁄4).

0 0 0 7,887 Section deleted. 

15.303 ........... 15.202 File claim against estate 

(affidavit).

N/A N/A N/A ....................

15.203 ........... N/A Provide response to 

transmittal.

0 0 0 2,972 This requirement has 

been deleted. 

15.303 ........... 15.202 Provide info on creditor 

claim (6 per probate).

35,100 0.5 17,550 63,705 Decrease to reflect 6 

claims per probate. 

15.402 ........... 15.403 Provide info for filing appeal.0 0 0 53,088 Now only have to file a 

notice of appeal; info 

collection requirements 

moved to 43 part CFR 

4. 

15.505 Provide tribal information 

for probate file.2.

5,620 2 11,240 0 New requirement for 

tribes 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. 

New CFR 

section 

Description of info collection 

requirement 

No. of resps 

per yr 

Hours per 

resp 

Total hours 

requested 

(annual)* 

Currently 

approved 

hours 

Explanation of difference 

18.4 .............. Submit tribal probate code or 

amendment.

100 0.5 50 0 New section requires 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. 


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Description of Respondents: Indians, 

tribal authorities, businesses or other 

non-profits, Federal government, and 

other members of the public. 

Total Annual Responses: 12,686. 

Total Annual Burden Hours: 12,696. 

The following is an explanation of the 

information collection requirements for 

25 CFR part 150 and any changes from 

the current rule. 

Total Non-Hour Burden: $907,795. 

Section 150.208 How do I correct an 

error or omission in a title instrument or 

LTRO product or service? 

Section 150.208 requires persons who 

discover an error or omission in an 

LTRO record to provide the LTRO with: 

(1) a written description of the error or 

omission; and (2) any supporting 

documentation. 

The Department estimates that a 

minimal number of persons and entities 

requesting services and products from 

LTRO each year will identify an error or 

omission in an LTRO record. Most 

errors and omissions are identified 

through an in-house quality assurance 

process wherein the agency filing the 

document with the LTRO reviews the 

document to identify and address errors 

and omissions. The Department also 

estimates that it will take approximately 

2 hours to write a statement describing 

the error or omission and research, 

copy, and provide either via mail or in 

person any documentation supporting 

the claim that an error or omission 

exists. 

Burden hours = 10 persons and 

entities identifying errors or omissions 

per year × 2 hours = 20 burden hours. 

The total burden costs based on a 

$18.52/hour cost estimate multiplied by 

the total hourly burden per year = 

$370.40. This represents an adjustment 

to account for a previously unidentified 

information collection request burden, 

with no annualized startup, or 

operations and maintenance costs. 

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) × 1 hour per request = 6,338 

burden hours. The total burden costs 

based on a $18.52/hour cost estimate 

multiplied by the total hourly burden 

per year = $117,380. This represents an 

adjustment to account for a previously 

unidentified information collection 

request burden, with no annualized 

startup costs. Operations and 

maintenance costs in the form of fees 

are estimated to be $453,897.50 (one 

half of the total fees $907,795). 

Section 150.302(c) How do I order 

services and products from the LTRO? 

The proposed revisions to part 150 

provided in subsection (c) of this 

section include a requirement for 

persons requesting LTRO products or 

services to provide alternate information 

to identify the property if they are 

unable to provide the information listed 

in section 150.302(b). Section 150.302(c) 

allows the applicant to submit any other 

information that the LTRO may use to 

identify an owner of the tract of land, 

including but not limited to: name and 

tribal affiliation of an owner, the 

recording number of the instrument, or 

an allotment number. 

Because this information is alternate 

information, the Department estimates 

that of the estimated 6,338 persons and 

entities requesting services and 

products from the LTRO 2 times each 

year, 3,169 will be unable to provide the 

information required by section 

152.302(b), and therefore submit the 

information in section 150.302(c). The 

Department also estimates that it will 

take approximately 1 hour to obtain and 

provide information necessary to 

identify the tract of property for which 

they are requesting the product or 

service. Burden hours = 3,169 requests 

(3,169 persons and entities × 2 times per 

year) × 1 hour = 6,338 burden hours. 

The total burden costs based on a 

$18.52/hour cost estimate multiplied by 

the total hourly burden per year = 

$117,380. This represents an adjustment 

to account for a previously unidentified 

information collection request burden, 

with no annualized startup costs. 

Operations and maintenance costs in 

the form of fees are estimated to be 

$453,897.50 (one half of the total fees 

$907,795). 


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New CFR section Description of info collection 

requirement 

No. of 

respondents 

(annual) 

Responses 

per 

respondent 

(annual) 

Hourly 

burden per 

response 

Total hourly 

burden 

(annual)* 

Explanation of difference 

150.208 ................. Provide written description 

and supporting documentation of error or omission.

10 1 2 20 Adjustment to account for previously unidentified burden. 

150.302(b) ............. Provide information to identify 

property when requesting 

product or service.

3,169 2 1 6,338 Adjustment to account for previously unidentified burden. 

150.302(c) ............. Provide other information if information in 150.302(b) is 

not available.

3,169 2 1 6,338 Adjustment to account for previously unidentified 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: 

• A legal description or other 

information allowing the parcel to be 

identified; and 

• A description of how the applicant 

meets the requirements of 152.4 (i.e., 

that the applicant is an owner of a 

parcel of trust or restricted land on the 

same reservation, the tribe that exercises 

jurisdiction over the parcel, a person 

eligible for membership in the tribe that 

exercises jurisdiction over the parcel, or 

a person or entity that is leasing, using, 

consolidating—or applying to lease, use, 

or consolidate trust or consolidated 

lands on that reservation). 

The Department estimates that 200 

persons and tribes each year will 

request the above LTRO information 

and that it will take approximately 0.5 

hours to compile and provide the 

information and draft and provide the 

written request. 

Burden hours = 200 persons and 

tribes requesting LTRO information × 

0.5 hours = 100 total burden hours, at 

$15/hour for a cost to the public of 

$1,500. This represents a program 

change, with no annualized startup, or 

operations and maintenance costs. 

Section 152.102 What must a land 

consolidation plan include? 

A tribal consolidation plan is a plan 

for eliminating fractionation and/or 

consolidating tribal land holdings, that 

specifies what land or interests are to be 

conveyed and what land or interests are 

to be purchased with the proceeds of the 

sale. Under section 152.105, in order for 

the Secretary to take action on the plan, 

the tribe must submit the plan to the 

Secretary for approval. The Department 

estimates that 50 tribes will prepare a 

consolidation plan each year, and that it 

will take 5 hours for each tribe to 

prepare the plan. 

Burden hours = 50 tribes × 5 hours = 

250 total burden hours, at $15/hour for 

a cost to the public of $3,750. This 

represents a program change, with no 

annualized startup, or operations and 

maintenance costs. 

Section 152.105 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 × 2 sales and 

exchanges × 0.60 hours = 60 total 

burden hours, at $15/hour for a cost to 

the public of $900. This represents a 

program change, with no annualized 

startup, or operations and maintenance 

costs. 

Section 152.107 In the absence of an 

approved land consolidation plan, how 

does a tribe get approval for an 

exchange of tribal land? 

This section requires a tribe 

requesting a sale or exchange in the 

absence of an approved tribal land 

consolidation plan to submit a tribal 

resolution to the Secretary. The 

Department estimates that, each year, 

100 tribes without consolidation plans 

will request an average of 1 sale or 

exchange, and that it will take 0.60 

hours to provide a tribal resolution in 

support of each sale or exchange. 

Burden hours = 100 tribes × 1 sale or 

exchange × 0.60 hours = 60 total burden 

hours, at $15/hour for a cost to the 

public of $900. This represents a 

program change, with no annualized 

startup, or operations and maintenance 

costs. 

Section 152.206 How does an owner 

initiate a negotiated sale, gift, or 

exchange? 

This section requires an owner to 

submit to the Secretary a written request 

for negotiated sale, gift, or exchange 

containing various items of information, 


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including: a description of the land, the 

grantee and his or her tribal affiliation, 

any limitations known by the grantor of 

the right to convey, any intention to 

reserve rights to the land, whether the 

owner waives his right to fair market 

value, and the terms of the sale, gift, or 

exchange. The Department estimates 

that 200 tribal and individual Indian 

owners will request a negotiated sale, 

gift, or exchange each year, at an average 

of one request per person, and that it 

will take 4.2 hours to make a request in 

compliance with this section. 

Burden hours = 200 tribes/individual 

Indian owners × average of 1 request per 

person × 4.2 hours = 840 total burden 

hours, at $15/hour for a cost to the 

public of $12,600. This represents a 

program change, with no annualized 

startup, or operations and maintenance 

costs. 

Section 152.217 When can a co-owner 

acquire an interest previously acquired 

on behalf of a tribe? 

Subsection (b) of this section provides 

that a co-owner may request notification 

when a tribe initially acquires interest 

in a given tract under the Indian Land 

Consolidation Program. The response to 

this request will facilitate the owner’s 

ability to exercise the purchase option. 

The Department estimates that 50 

owners will request notification each 

year and that it will take 0.25 hours to 

provide the request and contact 

information to allow the Department to 

notify the co-owner when appropriate. 

Burden hours = 50 co-owners who 

will request notification x 1 request per 

co-owner x 0.25 hours = 12.5 total 

burden hours, at $15/hour for a cost to 

the public of $188 (rounded up from 

$187.5). This represents a program 

change, with no annualized startup, or 

operations and maintenance costs. 

Section 152.219 How does a 

transaction affect collection of 

construction costs for irrigation 

projects? 

Subsection (b) of this section provides 

that if land is conveyed in fee, the 

person acquiring the land in fee must 

enter into an agreement to pay the pro 

rata share of the construction project 

chargeable to the land, all construction 

costs that accrue in the future, and all 

future charges assessable to the land 

based on the annual cost of operations 

and maintenance of the irrigation 

system. The Department estimates that 

200 persons will acquire trust or 

restricted land in fee and that it will 

take 1 hour to enter into the required 

agreement. 

Burden hours = 200 persons acquiring 

land in fee status × 1 request per person 

× 1 hour = 200 total burden hours, at 

$15/hour for a cost to the public of 

$3,000. This represents a program 

change, with no annualized startup, or 

operations and maintenance costs. 

Section 152.303 How does a tribe 

apply for a parcel purchase? 

This section requires tribes who want 

to initiate a tribal parcel purchase to 

submit an application including various 

items of information, including: an 

appraisal which establishes the fair 

market value of the parcel as of the date 

the application is filed; a certified title 

report and/or consent forms from the 

owners, reflecting that the applicant has 

either acquired at least 50% of the trust 

or restricted interests in the parcel or 

obtained the consent of the owners of at 

least 50% of such interests; and a 

deposit of the purchase funds needed to 

compensate the owners of all of the 

outstanding trust or restricted interests 

in the parcel, based on the applicant’s 

appraisal. The Department estimates 

that 50 tribes each year will apply for a 

tribal parcel purchase and that it will 

take, on average, approximately 2 hours 

for each to provide the necessary 

applicant and tract information. The 

remaining components of the 

application are provided by either the 

Bureau of Indian Affairs or the Office of 

the Special Trustee for American 

Indians. 

Burden hours = 50 tribes × 1 

application per tribe × 2 hours = 100 

total burden hours, at $15/hour for a 

cost to the public of $1,500. This 

represents a program change, with no 

annualized startup, or operations and 

maintenance costs. 

Section 152.403 How do I apply to 

consolidate a parcel by sale? 

This section allows eligible bidders to 

apply to the Secretary for approval on 

the Bureau form, ‘‘Application for 

Consolidation by Sale,’’ to consolidate 

interests in a highly fractionated parcel 

by selling interests to one owner. The 

Department estimates that 100 eligible 

bidders will apply for a consolidation 

by sale each year, at an average of one 

application per eligible bidder, and that 

it will take 0.5 hours to prepare the 

application for consolidation by sale. 

Burden hours = 100 eligible bidders × 

1 application per eligible bidder × 0.5 

hours = 50 total burden hours, at $15/ 

hour for a cost to the public of $750. 

This represents a program change, with 

no annualized startup, or operations and 

maintenance costs. 

Section 152.412 How does a tribe 

reserve its right to match the highest 

bid? 

This section allows tribes to match 

the highest bid from a non-member of 

the tribe by submitting a copy of the 

tribal law or resolution to the Secretary. 

The Department estimates that 50 tribes 

will request the opportunity to match 

the highest bid to buy property, at an 

average of one request per tribe, each 

year, and that it will take 0.60 hours to 

prepare the resolution in support of the 

request. 

Burden hours = 50 tribes × 1 request 

per tribe × 0.6 hours = 30 total burden 

hours, at $15/hour for a cost to the 

public of $450. This represents a 

program change, with no annualized 

startup, or operations and maintenance 

costs. 

Section 152.503 How can an owner 

initiate a partition action? 

This section allows owners of 

fractional interests in a parcel to apply 

to the Secretary for partition of the 

parcel in order to consolidate interests 

in a smaller parcel. The application for 

partition must contain the legal 

descriptions, appraisals, and 

ownerships of the tract to be partitioned 

with smaller resulting tracts. The 

Department estimates that 50 owners 

each year will submit an application for 

partition, at an average of one 

application per owner, and that, on 

average, it takes approximately 2 hours 

to provide the necessary applicant and 

tract information. The Bureau of Indian 

Affairs provides the remaining 

information necessary for the 

transaction, including the legal 

description and the owners of the tract, 

while the Office of Appraisal Services 

provides the appraisal. 

Burden hours = 50 tribes × 1 

application per tribe × 2 hours = 100 

total burden hours, at $15/hour for a 

cost to the public of $1,500. This 

represents a program change, with no 

annualized startup, or operations and 

maintenance costs. 

Section 152.602 How do owners 

submit an application for approval of a 

mortgage or deed of trust? 

This section allows the owner of the 

proposed mortgagee or beneficiary to 

submit an application for approval of a 

mortgage or deed of trust containing the 

executed mortgage or deed of trust, the 

promissory note, other documents 

regarding remedy in the case of default, 

an appraisal, the loan application, a 

credit report, title reports, and any 

necessary environmental or historic 

preservation documentation. The 


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45204 Federal Register / Vol. 71, No. 152 / Tuesday, August 8, 2006 / Proposed Rules 

Department estimates that 100 owners 

will request a mortgage or deed of trust, 

at an average of one request per owner, 

and that it will take approximately 3 

hours to complete the application. Burden hours = 100 owners × 1 

application per owner × 3 hours = 300 

total burden hours, at $15/hour for a 

cost to the public of $4,500. This 

represents a program change, with no 

annualized startup, or operations and 

maintenance costs. 

New CFR 

section 

Description of info collection 

requirement 

No. of resps per 

yr 

Hours per 

resp 

Total hours 

requested 

(Annual)* 

Currently 

approved 

hours 

Explanation of 

difference 

152.3 ............. Request for information on 

parcel owners.

200 ...................... 0.5 100 0 Program change. 

152.102 ......... Tribal land consolidation plan 50 ........................ 5 250 0 Program change. 

152.105 ......... Tribal resolution requesting 

sale or exchange.

100 ...................... 0.0160 60 0 Program change. 

152.107 ......... Tribal resolution in absence of 

land consolidation plan.

100 ...................... 0.60 60 0 Program change. 

152.206 ......... Negotiated sale, gift, or exchange.200 ...................... 4.2 840 0 Program change. 

152.217(b) .... Request for notice of tribal acquisition.50 ........................ 0.25 12 .5 0 Program change. 

152.219(b) .... Agreement for payments with 

fee conveyance.

200 ...................... 1 200 0 Program change. 

152.303 ......... Tribal parcel purchase ............ 50 ........................ 2 100 0 Program change. 

152.403 ......... Consolidation by sale application.100 ...................... 0.5 50 0 Program change. 

152.412 ......... Copy of tribal law or resolution stating intent to match 

high bid.

50 ........................ 0.60 30 0 Program change. 

152.503 ......... Partition .................................. 50 ........................ 2 100 0 Program change. 

152.602 ......... Mortgage or Deed of Trust ..... 100 ...................... 3 300 0 Program change. 

Total ....... ................................................. Responses = 

1,250.

.................. 2,103 0 

The Department invites comments on 

the information collection requirements 

of this proposed rule. You may submit 

comments to the Desk Officer for the 

Department of Interior by e-mail at 

OIRA_DOCKET@omb.eop.gov or by 

facsimile at (202) 365–6566. Please also 

send a copy of your comments to BIA 

at the location specified under the 

heading ADDRESSES. You can receive a copy of BIA’s 

submission to OMB, including a copy of 

the form related to 25 CFR section 

152.403, by contacting the person listed 

in the FOR FURTHER INFORMATION

CONTACT section, or by requesting the 

information from the BIA Information 

Collection Clearance Officer, 625 

Herndon Parkway, Herndon, VA 20970. Comments should address: (1) 

Whether the collection of information is 

necessary for the proper performance of 

the Program, including the practical 

utility of the information to the BIA; (2) 

the accuracy of the BIA’s burden 

estimates; (3) ways to enhance the 

quality, utility, and clarity of the 

information collected; and (4) ways to 

minimize the burden of collection of 

information on the respondents, 

including the use of automated 

collection techniques or other forms of 

information technology. Organizations and individuals who 

submit comments on the information 

collection requirements should be aware 

that the Department keeps such 

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 


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

§ 15.1 What is the purpose of this part? 

This part contains the procedures that 

we follow to initiate the probate of the 

trust estate of a deceased person for 

whom we hold an interest as trust or 

restricted land or trust personalty. This 

part tells you how to file the necessary 

documents to probate the trust estate. 

This part also describes how probates 

will be processed by BIA, and how 

probates will be sent to the Office of 

Hearings and Appeals (OHA) for 

disposition. 

§ 15.2 What terms do I need to know? 

As used in this part: 

Act means the Indian Land 

Consolidation Act and its amendments, 

including Public Law 108–374, the 

American Indian Probate Reform Act of 

2004 (AIPRA). 

Administrative law judge (ALJ) means 

an administrative law judge with OHA 

appointed under the Administrative 

Procedure Act, 5 U.S.C. 3105. 

Agency means: 

(1) The Bureau of Indian Affairs (BIA) 

agency office, or any other designated 

office in BIA, having jurisdiction over 

trust or restricted land and trust 

financial assets; and 

(2) Any office of a tribe that has 

entered into a contract or compact to 

fulfill the probate function under 25 

U.S.C. 450f or 458cc. 

Attorney Decision Maker (ADM) 

means a licensed attorney with OHA 

who conducts a summary probate 

proceeding and renders a decision that 

is subject to de novo review by an 

administrative law judge or Indian 

probate judge. 

BIA means the Bureau of Indian 

Affairs within the Department of the 

Interior. 

Child includes any adopted child. 

Codicil means a supplement or 

addition to a will, executed with the 

same formalities as a will. It may 

explain, modify, add to, or revoke 

provisions in an existing will. 

Consolidation agreement means a 

written agreement under the provisions 

of 25 U.S.C. 2206(e) or 2206(j)(9), by 

which a decedent’s heirs and devisees 

consolidate interests in trust or 

restricted land, entered during the 

probate process, approved by the judge, 

and implemented by the probate order. 

Creditor means any individual or 

entity that has a claim for payment from 

a decedent’s estate. 

Day means a calendar day, unless 

otherwise stated. 


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Decedent means a person who is 

deceased. 

Decision or order (or decision and 

order) means a written document issued 

by a judge making determinations as to 

heirs, wills, devisees, and the claims of 

creditors, and ordering distribution of 

trust or restricted land or trust 

personalty. Decision or order also means 

the decision issued by an attorney 

decision maker in a summary probate 

proceeding. 

Department or DOI means the 

Department of the Interior. 

Devise means a gift of property by 

will. Also, to give a gift of property by 

will. 

Devisee means a person or entity that 

receives property under a will. 

Eligible heir means for the purposes of 

the Act, 25 U.S.C. 2206, any of a 

decedent’s children, grandchildren, 

great grandchildren, full siblings, half 

siblings by blood, and parents who are: 

(1) Indian; 

(2) Lineal descendents within two 

degrees of consanguinity of an Indian; 

or 

(3) Owners of a trust or restricted 

interest in a parcel of land for purposes 

of inheriting, by descent, renunciation, 

or consolidation agreement, another 

trust or restricted interest in such parcel 

from the decedent. 

Estate means the trust or restricted 

land and trust personalty owned by the 

decedent at the time of death. 

Form OHA–7 means a form (or an 

automated database equivalent) used by 

BIA to record data for heirship and 

family history, including but not limited 

to information on any wills, trust and 

restricted land, marriages, births, 

deaths, adoptions, and names and 

addresses of all interested parties. 

Formal probate proceeding means a 

trial-type proceeding, conducted by a 

judge, in which evidence is obtained 

through the testimony of witnesses and 

the receipt of relevant documents. 

Heir means any individual or entity 

eligible to receive trust or restricted land 

or trust personalty from a decedent in 

an intestate proceeding. 

I means, in question headings, an 

heir, a devisee, an owner of trust or 

restricted land or trust personalty, or a 

creditor. 

Individual Indian Money (IIM) 

account means funds held in trust in an 

individual Indian money (IIM) account 

by OST or by a tribe performing this 

function under a contract or compact. 

These funds also are defined as the 

‘‘trust personalty.’’

Indian means, for the purposes of the 

Act, 25 U.S.C. 2206: 

(1) Any person who is a member of a 

federally recognized Indian tribe, is 

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. 

§ 15.3 Who can make a will disposing of 

trust or restricted land or trust personalty? 

Any person 18 years of age or over 

and of testamentary capacity, who has 

any right, title, or interest in trust or 

restricted land or trust personalty, may 

dispose of trust or restricted land or 

trust personalty by will. 


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§ 15.4 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. 

§ 15.5 Can I revoke my will? 

Yes. You may revoke your will at any 

time. You may revoke your will by any 

means authorized by tribal or Federal 

law, including executing a subsequent 

will or other writing with the same 

formalities as are required for execution 

of a will. 

§ 15.6 Can my will be deemed revoked by 

operation of the law of any state? 

No will that is subject to the 

regulations of this subpart will be 

deemed to be revoked by operation of 

the law of any State. 

§ 15.7 What is a self-proved will? 

A self-proved will employs an 

affidavit, attached to the will, signed by 

the testator and the witnesses before an 

officer authorized to administer oaths, 

certifying that they complied with the 

requirements of execution of the will. 

Using an affidavit executed at the same 

time as the will avoids the need for the 

testimony of the will witnesses at 

probate to prove the execution of the 

will. 

§ 15.8 Can I make my will, codicil, or 

revocation self-proved? 

Yes. A will, codicil, or revocation may 

be made self-proved as provided in this 

section. 

(a) A will, codicil, or revocation 

executed as provided in § 15.4 may be 

made self-proved by the testator and 

attesting witnesses at the time of its 

execution. 

(b) The testator and the attesting 

witnesses must make these affidavits 

before an officer authorized to 

administer oaths, and the affidavits 

must be attached to the will. 

§ 15.9 Do affidavits for my self-proved will, 

codicil, or revocation have to be in a certain 

format? 

Yes, the affidavits of the testator and 

attesting witnesses must be in 

substantially the following form and 

content. 

(a) Format for testator’s affidavit: 

Tribe of llll or 

State of llll 

County of llll ss. 

I, llll, being first duly sworn, on oath, 

depose and say: That I am an llll 

(enrolled or unenrolled) member of the 

llll Tribe of Indians in the State of 

llll; that on the l day of l , 20l, that 

I requested llll and llll to act as 

witnesses thereto; that I declared to said 

witnesses that said instrument was my last 

will and testament; that I signed said will in 

the presence of both witnesses; that they 

signed the same as witnesses in my presence 

and in the presence of each other; that said 

will was read and explained to me (or read 

by me), after being prepared and before I 

signed it, and it clearly and accurately 

expresses my wishes; and that I willingly 

made and executed said will as my free and 

voluntary act and deed for the purposes 

therein expressed. 

lllllllllllllllllllll

Testator 

(b) Format for attesting witnesses’

affidavit: 

We, llll and llll, each being first 

duly sworn, on oath, depose and state: That 

on the l day of l, 20l, l, a member of 

the llll Tribe of Indians of the State of 

llll, published and declared the 

attached instrument to be his/her last will 

and testament, signed the same in the 

presence of both of us, and requested both of 

us to sign the same as witnesses; that we, in 

compliance with his/her request, signed the 

same as witnesses in his/her presence and in 

the presence of each other; that said testator 

was not acting under duress, menace, fraud, 

or undue influence of any person, so far as 

we could ascertain, and in our opinion was 

mentally capable of disposing of all his/her 

estate by will. 

lllllllllllllllllllll

Witness 

lllllllllllllllllllll

Witness 

Subscribed and sworn to before me thislday 

of l, 20l, by llll testator, and by 

llll and llll, attesting witnesses. 

lllllllllllllllllllll

lllllllllllllllllllll

(Title) 

§ 15.10 Will the Secretary probate all the 

land or assets in an estate? 

(a) We will probate only the trust or 

restricted land or trust personalty in an 

estate. 

(b) We will not probate the following 

property: 

(1) Real or personal property other 

than trust or restricted land or trust 

personalty in an estate of a decedent; 

(2) Restricted land derived from 

allotments made to members of the Five 

Civilized Tribes (Cherokee, Choctaw, 

Chickasaw, Creek and Seminole) in 

Oklahoma; and 

(3) Restricted interests derived from 

allotments made to Osage Indians in 

Oklahoma (Osage Nation) and Osage 

headright interests owned by Osage 

decedents. 

(c) We will probate that part of the 

estate of a deceased member of the Five 

Civilized Tribes or Osage Nation who 

owns a trust interest in land or a 

restricted interest in land derived from 

an individual Indian other than the Five 

Civilized Tribes or Osage Nation. 

§ 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). 

§ 15.12 What happens if assets in a trust 

estate may be diminished or destroyed 

while the probate is pending? 

(a) This section applies if an 

interested party or BIA: 

(1) Learns of the death of a person 

entitled to trust or restricted property; 

and 

(2) Determines that an emergency 

exists and the assets in the trust estate 

may be significantly diminished or 

destroyed before the final decision and 

order of a judge in a probate case. 

(b) The interested party or BIA may: 

(1) Request the immediate assignment 

of a judge or ADM for the probate case; 

(2) Transmit or request the transfer of 

a probate file to OHA containing 

sufficient information on potential 

interested parties and documentation 

concerning the emergency alleged for a 

judge to consider emergency relief in 

order to preserve estate assets; and 

(3) Request an expedited hearing or 

consideration of ex parte relief to 

prevent impending or further loss or 

destruction of trust assets. 

(c) The Superintendent or other 

authorized representative of BIA is 

granted the standing necessary to 

request relief under this section. 

Subpart B—Starting the Probate 

Process 

§ 15.101 When should I notify BIA of a 

death? 

There is no deadline for notifying us 

of a death. 

(a) Notify us as provided in § 15.103 

to assure timely distribution of the 

estate. 

(b) If we find out about the death of 

a person and if the decedent meets the 

criteria in § 15.3, we will initiate the 

process to collect the necessary 

documentation. 

§ 15.102 Who may notify BIA of a death? 

Anyone may notify us of a death. 


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§ 15.103 How do I begin the probate 

process? 

As soon as possible, contact any of the 

following to inform us of the decedent’s 

death: 

(a) The BIA agency or regional office 

nearest to where the decedent was 

enrolled; 

(b) Any BIA agency or regional office; 

(c) The tribe where the decedent was 

enrolled; or 

(d) The Trust Beneficiary Call Center 

at (888) 678–6836 ext. 0. 

§ 15.104 Does BIA need a death certificate 

to prepare a probate file? 

(a) We require a certified copy of the 

death certificate if a certified copy 

exists. If necessary, we will make a copy 

from your certified copy for our use and 

return your copy. 

(b) If a certified copy of the death 

certificate does not exist, you must 

provide as much information as you can 

concerning the deceased, such as: 

(1) The State, city, reservation, 

location, date, and cause of death; 

(2) The last known address of the 

deceased; names and addresses of others 

who may have information about the 

deceased; and any other information 

available concerning the deceased, such 

as newspaper articles, obituary, or death 

notices or a church or court record. 

(c) If no certified copy of a death 

certificate exists, we require an affidavit 

stating as much of the information set 

forth in paragraph (b) of this section as 

is available, as well as any other 

information available concerning the 

decedent. 

§ 15.105 What other documents does BIA 

need to prepare a probate file? 

In addition to the certified copy of a 

death certificate or other reliable 

evidence of death listed in § 15.104, we 

need the following information and 

documents: 

(a) Originals or copies of all wills, 

codicils, and revocations, or other 

evidence that a will may exist; 

(b) Social Security number of the 

decedent; 

(c) The place of enrollment and the 

tribal enrollment or census number of 

the decedent and potential heirs or 

devisees; 

(d) Current names and addresses of 

the decedent’s potential heirs and 

devisees; 

(e) Any sworn statements regarding 

the decedent’s family, including any 

statements of paternity or maternity; 

(f) Any statements renouncing an 

interest in the estate including 

identification of the person or entity in 

whose favor the interest is renounced, if 

any; 

(g) A list of known claims by creditors 

of the decedent against the estate and 

their addresses, including copies of any 

court judgments; and 

(h) Documents, certified if possible, 

from the appropriate authorities 

concerning the public record of the 

decedent, including but not limited to, 

any: 

(1) Marriage licenses of the decedent, 

(2) Divorce decrees of the decedent, 

(3) Adoption and guardianship 

records concerning the decedent or the 

decedent’s potential heirs or devisees; 

(4) Use of other names by the 

decedent, including copies of name 

changes by court order; and 

(5) Order requiring payment of child 

support or spousal support. 

§ 15.106 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. 

§ 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. 

§ 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 

§ 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. 

§ 15.202 If the decedent owed me money, 

how do I file a claim against the estate? 

If a decedent owed you money, you 

can make a claim against the estate of 

the decedent before the probate file is 

transferred to OHA. To do this, you may 

submit to us an affidavit under oath of 

the debt alleged and an itemized 

statement of the debt, including copies 

of any documents (such as signed notes, 

mortgages, account records, billing 

records, and journal entries) necessary 

to prove the indebtedness. You may also 

file your claim as a creditor with OHA 


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after the probate file has been 

transferred and pending adjudication 

has not been completed if you comply 

with 43 CFR 30.140–30.148. 

(a) The itemized statement must show 

the amount of the original debt and the 

remaining balance on the date of the 

decedent’s death. 

(b) The affidavit must state whether 

you have filed a claim or sought 

reimbursement against the decedent’s 

non-trust assets and whether you have 

filed a claim for the same debt in any 

other judicial or quasi-judicial 

proceeding. 

(c) Secured creditors must first 

exhaust the security before submitting a 

claim against trust personalty for any 

deficiency. Submit a certified copy of a 

judgment of a court of competent 

jurisdiction determining the deficiency. 

(d) File your claim before the 

conclusion of the first hearing or, for 

cases designated as summary probate 

proceedings, as allowed under 43 CFR 

30.202. Claims not filed by then will be 

barred forever. 

Subpart D—Preparing the Probate file 

§ 15.301 What will BIA do with the 

documents that I provide? 

After we receive notice of the death of 

a person owning trust or restricted land 

or trust personalty, we will examine the 

documents provided under §§ 15.104 

and 15.105, and other documents and 

information you may provide to prepare 

a complete probate file. We will consult 

with you and any other sources to 

obtain additional information to 

complete the probate file. Then we will 

transfer the probate file to OHA. 

§ 15.302 What items must BIA include in 

the probate file? 

BIA must query available sources of 

information to locate and include the 

following items in the probate file: 

(a) The evidence of death of the 

decedent as provided by § 15.104; 

(b) A completed Form OHA–7, ‘‘Data 

for Heirship Findings and Family 

History,’’ certified by BIA, with the 

enrollment or other identifying number 

shown for each potential heir or 

devisee, if such number has been 

assigned; 

(c) Information provided by potential 

heirs, devisees or the tribes on: 

(1) Whether the heirs and devisees 

meet the definition of ‘‘Indian’’ for 

probate purposes, including enrollment 

or eligibility for enrollment in a tribe; 

(2) Whether the potential heirs or 

devisees are within two degrees of 

consanguinity of an ‘‘Indian’’; and 

(3) If an individual only qualifies as 

an Indian because of ownership of a 

trust or restricted interest in land, the 

date on which the individual became 

the owner of the trust or restricted 

interest; 

(d) A certified inventory of trust or 

restricted land, including: 

(1) Accurate and adequate 

descriptions of all land and 

appurtenances; 

(2) All encumbrances on the land, 

including but not limited to leases, 

mortgages, and rights of way; 

(3) Identification of any interests that 

represent less than 5% of the undivided 

interest in a parcel; and 

(4) Identification of all income 

generating activity, such as leases or 

rights of way and any assignments of 

such income; 

(e) A statement showing the balance 

of the decedent’s IIM account at the date 

of death; 

(f) A statement showing all 

disbursements from the decedent’s IIM 

account after the date of death; 

(g) Originals or copies of all wills, 

codicils, and revocations; 

(h) A copy of any statement or 

document concerning any wills, codicils 

or revocations we have returned to the 

testator; 

(i) Any statement renouncing an 

interest in the estate that has been 

submitted to us, and the information 

necessary to identify any person 

receiving a renounced interest; 

(j) Claims of creditors, including 

documentation required by § 15.202; 

(k) Documentation of any payments 

made on claims filed under the 

provisions of § 15.201; 

(l) All the documents acquired under 

§ 15.105; 

(m) The record of each tribal or 

individual request to purchase a trust or 

restricted land interest at probate; 

(n) The record of any individual 

request for a consolidation agreement, 

including a description, such as an 

Individual/Tribal Interest Report, of any 

lands not part of the decedent’s estate 

that are proposed for inclusion in the 

consolidation agreement; and 

(o) An affidavit by the probate staff, if 

applicable, certifying that the 

Department has complied with 25 

U.S.C. 2201 et seq in attempting to 

locate missing potential heirs and 

devisees and identifying the steps that 

were taken. 

§ 15.303 When is a probate file complete? 

A probate file is complete for transfer 

to OHA when a BIA approving official 

includes a certification that: 

(a) States that the probate file includes 

all information listed in § 15.302 that is 

available; and 

(b) Lists all sources of information 

BIA queried in an attempt to locate 

information listed in § 15.302 that is not 

available. 

Subpart E—Probate Processing and 

Distributions 

§ 15.401 What happens after BIA prepares 

the probate file? 

After we assemble all the documents 

required by § 15.302, our probate staff 

will: 

(a) Refer the case to OHA for 

assignment to a judge or ADM; and 

(b) Forward a list of fractional 

interests that represent less than 5 

percent of the entire undivided 

ownership of each parcel of land in the 

decedent’s estate to the Indian Land 

Consolidation Office and to the tribes 

with jurisdiction over those interests. 

§ 15.402 What happens after the probate 

file is referred to OHA? 

(a) When OHA receives the probate 

file from BIA, it will assign the case to 

a judge or ADM. The judge or ADM will 

conduct the probate proceeding and 

issue a written decision and an order, in 

accordance with 43 CFR part 4, subpart 

D. 

(b) If BIA receives any claims from 

creditors after the probate file is 

transmitted to OHA, but before the order 

is issued, BIA must promptly transmit 

those claims to OHA. 

§ 15.403 What happens after the probate 

decision is made? 

Once the probate decision is made: 

(a) You have 30 days from the 

decision or order mailing date to file a 

written request for a de novo review, a 

request for rehearing or an appeal, in 

accordance with 43 CFR part 30; 

(b) When you file a timely request for 

de novo review, a request for rehearing, 

or an appeal, we will not pay claims, 

transfer title to land, or distribute trust 

personalty until the request or appeal is 

resolved; and 

(c) If no interested party timely files 

a request or appeal, we will wait at least 

10 days after the 30 day period stated 

in paragraph (a) of this section before 

paying claims, transferring title to land, 

or distributing trust personalty, then: 

(1) The LTRO will change its land 

title records for the trust and restricted 

land in accordance with the final 

decision or order; and 

(2) We will pay claims and distribute 

the IIM account in accordance with the 

final decision or order. 

Subpart F—Information and Records 

§ 15.501 How can I find out the status of 

a probate? 

You may contact any BIA agency or 

regional office, an OST fiduciary trust 


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officer or the Trust Beneficiary Call 

Center at (888) 678–6836 ext. 0, to get 

information about the status of an 

Indian probate. 

§ 15.502 Who owns the records associated 

with this part? 

(a) The United States owns the 

records associated with this part if they: 

(1) Are made by or on behalf of the 

United States; 

(2) Are made or received by a tribe or 

tribal organization in the conduct of a 

federal trust function under this part, 

including the operation of a trust 

program under Public Law 93–638 as 

amended; and 

(3) Are evidence of the organization, 

functions, policies, decisions, 

procedures, operations, or other 

activities undertaken in the performance 

of a federal trust function under this 

part. 

(b) The tribe owns the records 

associated with this part if they: 

(1) Are not covered by paragraph (a) 

of this section; and 

(2) Are made or received by a tribe or 

tribal organization in the conduct of 

business with the Department of the 

Interior under this part. 

§ 15.503 How must records associated 

with this part be preserved? 

(a) Any organization that has records 

identified in § 15.502(a), including 

tribes and tribal organizations, must 

preserve the records in accordance with 

approved Departmental records 

retention procedures under the Federal 

Records Act, 44 U.S.C. chapters 29, 31, 

and 33; and 

(b) A tribe or tribal organization must 

preserve the records identified in 

§ 15.502(b) for the period authorized by 

the Archivist of the United States for 

similar Department of the Interior 

records under 44 U.S.C. chapter 33. 

§ 15.504 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. 

§ 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. 

§ 15.506 How does the Paperwork 

Reduction Act affect this part? 

The collections of information 

contained in §§ 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. 

§ 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 

§ 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). 

§ 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. 

§ 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. 

§ 18.4 How does a tribe request approval 

for a probate code? 

(a) To begin the approval process for 

either a tribal probate code or 

amendment to the code, the tribe must 

submit to the local Bureau Official as 

defined in 25 CFR 82.1(h): 

(1) Its probate code or an amendment 

to an existing code; and 

(2) A duly executed tribal resolution 

adopting the code or the amendment. 

(b) The local Bureau Official will 

make sure that a complete copy of the 

code and the resolution is submitted to 

the Assistant Secretary—Indian Affairs 

for approval. 

§ 18.5 When will you approve or 

disapprove a probate code or amendment? 

(a) We have 180 days from submission 

of a complete package to the local 

Bureau Official to approve or 

disapprove a tribal probate code. 

(b) We have 60 days from submission 

of an amendment of the tribal probate 

code to approve or disapprove the 

amendment. 

(c) If we do not meet the deadlines in 

paragraphs (a) or (b) of this section, the 

tribal probate code or the amendment to 

the code will be deemed approved, but 

only to the extent that it: 

(1) Is consistent with Federal law; and 

(2) Promotes the policies of the ILCA 

Amendments of 2000 as listed in § 18.3. 


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§ 18.6 What happens if the probate code or 

amendment is approved? 

Our approval applies only to those 

sections of the tribal probate code that 

govern the descent and distribution of 

trust or restricted land. We will: 

(1) Notify the tribe of the approval 

and forward a copy of the code or 

amendment to the Office of Hearings 

and Appeals; and 

(2) Publish a notice of the date of the 

approval in the Federal Register. 

§ 18.7 How is a tribe notified of a 

disapproval? 

If we disapprove a tribal probate code 

or amendment, we must provide the 

tribe with a written notification of the 

disapproval that includes: 

(a) An explanation of the reasons for 

the disapproval; and 

(b) Notification that the tribe may 

appeal the disapproval directly to the 

Interior Board of Indian Appeals under 

25 CFR part 2. 

§ 18.8 When will a tribal probate code 

become effective? 

(a) A tribal probate code may not 

become effective sooner than 180 days 

after the date of approval. 

(b) The tribal probate code or 

amendment will apply only to the estate 

of a decedent who dies on or after the 

effective date of the tribal probate code 

or amendment. 

§ 18.9 What will happen if a tribe repeals 

its probate code? 

(a) If a tribe repeals its tribal probate 

code, the repeal: 

(1) Will not become effective sooner 

than 180 days from the date we receive 

notification from the tribe of its decision 

to repeal the code; and 

(2) Will apply only to the estate of a 

decedent who dies on or after the 

effective date of the repeal. 

(b) We will: 

(1) Forward a copy of the repeal to the 

Office of Hearings and Appeals; and 

(2) Publish a notice of the date of 

repeal in the Federal Register. 

§ 18.10 How does the Paperwork 

Reduction Act affect this part? 

The collection of information 

contained in § 18.4 has been approved 

by the Office of Management and 

Budget under 44 U.S.C. 3501 et seq. and 

assigned OMB Control Number 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 

§ 150.1 What is the purpose of this part? 

The purpose of this part is to describe 

the authorities, policies, and procedures 

used for: 

(a) Recording instruments that affect 

title to Indian land; 

(b) Maintaining copies of title 

instruments; 

(c) Maintaining the Indian Land 

Record of Title; 

(d) Certifying title instruments of 

Indian land; 

(f) Examining and determining title 

status; 

(g) Preparing reports on the title of 

Indian land; and 

(h) Designating the Indian Land 

Record of Title as the official record for 

instruments that affect title to Indian 

land. 

§ 150.2 What terms do I need to know? 

As used in this part: 

BIA means the United States 

Department of the Interior Bureau of 

Indian Affairs. 

Constructive notice means 

information or knowledge of a fact 

imputed by law to a person even if such 

person has no actual knowledge of the 

fact. 

Federal government means the 

government of the United States. 

Government offices mean the Federal, 

state, county, and municipal 

government. 

Indian land means land held in trust 

status or restricted status, or certain 

Federal government land that is under 

the jurisdiction of BIA. 

Indian Land Record of Title means the 

record of title instruments for Indian 

land under the Act of July 26, 1892, 27 

Stat.272; 25 U.S.C. 5. 

Instrument means a document in 

writing, including, but not limited to, a 

contract, deed, will, bond, judicial or 

administrative order, lease, or easement, 

including a map or plat. 

Interest, when used with respect to 

Indian land, means a present or future 

right in trust or restricted land. 

Land means real estate. 

Land Titles and Records Office 

(LTRO) means the office within BIA that 


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is responsible for maintaining the 

Indian Land Record of Title by 

recording, providing custody, and 

certifying title instruments in its 

custody, and for examining and 

determining the completeness and 

accuracy of the record of interests in 

Indian land, certifying the findings of 

examination, and reporting the status of 

interests in Indian land. The Land Titles 

and Records Office, as used herein, 

includes tribes which have compacted 

or contracted to perform some Land 

Titles and Records functions. 

Recording means the entry of the 

information from an instrument into the 

Indian Land Record of Title. Recording 

an instrument in the Indian Land 

Record of Title gives constructive notice 

of the instrument’s existence. 

Secretary means the Secretary of the 

Interior, or an authorized representative. 

Title means an interest, or evidence of 

an interest, in Indian land. 

Title examination means a review and 

evaluation by the Land Titles and 

Records Office of the information in the 

Indian Record of Title for a particular 

tract of Indian land and a finding that 

such information is complete, accurate, 

and current. 

Title instrument means any 

instrument that affects an interest in 

Indian land and that the law and 

regulations require to be approved or 

recorded. 

Tribe means any Indian tribe, nation, 

band, pueblo, town, community, 

rancheria, colony, or other group of 

Indians, which is recognized by the 

Secretary as eligible for the special 

programs and services provided by the 

Bureau of Indian Affairs, and listed in 

the Federal Register under Public Law 

103–454, act of Nov. 2, 1994 (108 Stat. 

4791; 25 U.S.C. 479a). 

Trust status means the United States 

holds title to the property in trust for the 

benefit of a tribe or individual Indian. 

Restricted status means a tribe or 

individual Indian holds title to the 

property in fee simple subject to Federal 

restrictions on alienation or 

encumbrance. 

You/I means the person reading this 

regulation. 

§ 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. 

§ 150.4 Do I have to be an Indian or a tribe 

to obtain products or services from the 

Land Titles and Records Office? 

No. Anyone may receive products and 

services offered by the Land Titles and 

Records Office (LTRO). 

Subpart B—The Indian Land Record of 

Title Designation as the Official Record 

of Indian Land 

§ 150.101 Must all title instruments 

affecting Indian land be recorded in the 

Indian Land Record of Title? 

The Indian Land Record of Title is the 

official record of title instruments 

affecting Indian land and all title 

instruments must be recorded there, 

except as provided by other Federal 

statutory authority. When the LTRO 

records a title instrument in the Indian 

Land Record of Title, the public receives 

constructive notice that the title 

instrument exists. Title instruments 

affecting Indian land within the 

jurisdiction of the Five Civilized Tribes 

and the Osage Nation must be recorded 

in the county courthouse serving the 

county within which the land is located. 

§ 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 

§ 150.201 Who maintains the Indian Land 

Record of Title? 

The LTRO is the office within BIA 

responsible for maintaining the Indian 

Land Record of Title. It records title 

instruments affecting Indian land, 

certifies copies of images of the 

instruments in the custody of the LTRO, 

examines the record and certifies the 

findings of examinations, and provides 

other services and products based upon 

the information in the record. 

§ 150.202 Where is the LTRO located? 

The LTRO has locations throughout 

the United States. You may contact any 

BIA office for the current contact 

information. 

§ 150.203 Who submits the title 

instruments for recording? 

BIA submits most of the title 

instruments to the LTRO. Tribes, other 

government offices, and individuals 

may also submit instruments to the 

LTRO. 

§ 150.204 What does the LTRO do with the 

instruments it receives? 

(a) The LTRO reviews the instrument 

to ensure that it satisfies the minimum 

requirements for recording. If so, the 

LTRO: 

(1) Makes a true and correct image of 

the instrument; 

(2) Enters the information contained 

in the instrument affecting the status of 

title into the Indian Land Record of 

Title; and 

(3) Returns the original instrument. 

(b) If the instrument does not satisfy 

the minimum requirements, the LTRO 

returns the instrument with an 

explanation why the instrument was not 

accepted for recording. 

§ 150.205 What are the minimum 

requirements for recording a title 

instrument? 

The minimum requirements for 

recording an instrument include: 

(a) A legal description of the Indian 

land; 

(b) The signatures of the parties to the 

instrument; 

(c) Proper acknowledgment of the 

signatures of the parties; and 

(d) If required, proper Federal 

approval, and the approval date and 

authority of the Federal official. 

§ 150.206 What if the LTRO discovers a 

defect or error in a document? 

(a) If the LTRO discovers the error 

after the instrument is recorded, the 

LTRO will notify the submitting person 


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of the error and make a notation in the 

Indian Land Record of Title that an error 

exists. 

(1) Once the interested parties correct 

the error and the submitting person 

returns an instrument evidencing the 

correction to the LTRO, the LTRO will 

record the instrument in the Indian 

Land Record of Title. 

(2) In any subsequent title 

examination, the LTRO will rely upon 

the corrected instrument to determine 

the title status of the Indian land. 

(b) If the LTRO discovers a defect or 

error in a final probate record after it has 

been recorded, the LTRO will issue 

administrative corrections to correct 

clerical probate errors, or to add omitted 

property or interest as set forth in 43 

CFR 30.126. Other defects or errors will 

be addressed through the probate 

process as provided in 43 CFR part 30. 

§ 150.207 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. 

§ 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 §§ 150.206 

through 150.208. 

§ 150.209 What instruments qualify for 

recording with the LTRO? 

Only title instruments qualify for 

recording in the Indian Land Record of 

Title. 

§ 150.210 Does the LTRO maintain the 

original title instruments? 

No. The LTRO returns the original 

instrument to the submitter. 

§ 150.211 May I obtain a copy of the title 

instrument from the LTRO? 

Yes. If the Land Titles and Records 

Office has recorded the information 

from the title instrument in the Indian 

Land Record of Title and has made a 

copy of the title instrument, you may 

obtain a copy of the title instrument, 

subject to the Freedom of Information 

Act and the Privacy Act considerations 

as described in § 150.3. 

§ 150.212 Is there any benefit to obtaining 

a certified copy of the title? 

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 

§ 150.301 What services and products may 

I order from the LTRO? 

You may obtain a list of services and 

products provided by the LTRO from 

the LTRO or BIA. Services include: 

(a) Recording title instruments; 

(b) Providing certified and uncertified 

copies of images of title instruments 

recorded in the Indian Land Record of 

Title; and 

(c) Producing reports. 

§ 150.302 How do I order services and 

products from the LTRO? 

(a) You may submit your written 

request for services and products to any 

location of the LTRO or BIA. 

(b) You must include either a legal 

description of the land, the 

identification number of the tract, or the 

identification number of an owner of an 

interest in the tract. 

(c) You may submit other information 

that the LTRO may use to identify an 

owner of an interest in the tract of land, 

including but not limited to: name and 

tribal affiliation of an owner, the 

recording number of the instrument, or 

an allotment number. 

§ 150.303 Does BIA charge fees for any of 

the services provided by, or products 

produced by, the LTRO? 

(a) BIA charges fees for certain 

services and products provided by the 

LTRO. All persons who receive services 

and products from the LTRO will be 

assessed a fee, except as provided in 

paragraph (b) of this section. You may 

pay the fee by certified check or money 

order. 

(1) A copy of the fee schedule is 

available from BIA. 

(2) Contact the LTRO for an estimate 

of the amount of the fee for a service or 

product. 

(3) You must pay the entire fee, or 

minimum fee if the fee is an hourly rate, 

when you request the service or the 

product from the LTRO. When the 

LTRO delivers the service or the 

product to you, you must pay any 

remaining amount according to the 

hourly rate. 

(b) The LTRO may grant an exception 

under the following circumstances: 

(1) If you are an individual Indian and 

are recording a transaction that reduces 

the number of owners of undivided 

interests in a tract of Indian land; 

(2) If you are an individual Indian and 

are recording an instrument to transfer 

your undivided interest in Indian land 

to a tribe; 

(3) If you are a tribe and recording a 

transaction that will consolidate the 

ownership interests of a tract of Indian 

land; or 

(4) You are an agency or office within 

the Department of the Interior or the 

Department of Justice. 

(c) The LTRO will charge you a 

minimum fee even if the LTRO is 

unable to provide the service or the 

product, unless the LTRO grants an 

exception under paragraph (b) of this 

section. 

(d) The LTRO will refund your fee for 

any information that cannot be 

delivered to you because of the Privacy 

Act (5 U.S.C. 552a) or other law or 

policy restricting access to the records. 

§ 150.304 What will the LTRO do if the 

instrument contains information that is 

privileged or protected? 

If information is protected under the 

Privacy Act, or cannot be provided to 

you because of 5 U.S.C. 552a or another 

law or policy restricting access, the 

LTRO will: 

(a) Redact the information; and 

(b) Provide you with the remaining 

information or an altered copy of the 

image of the instrument. 

§ 150.305 How does the Paperwork 

Reduction Act affect this part? 

The collections of information 

contained in §§ 150.208, 150.302(b), and 

150.302(c), have been approved by the 

Office of Management and Budget under 

44 U.S.C. 3501 et seq. and assigned 

OMB Control Number 1076–xxxx. 

Response is required to obtain a benefit. 

A Federal agency may not conduct or 

sponsor, and you are not required to 


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respond to, a collection of information 

unless the form or regulation requesting 

the information has a currently valid 

OMB Control Number. 

PART 152—CONVEYANCES OF TRUST 

OR RESTRICTED INDIAN LAND; 

REMOVAL OF TRUST OR 

RESTRICTED STATUS 

4. The authority citation for part 152 

continues to read as follows: 

Authority: 25 U.S.C. 2201–2204, 2212–

2216, Indian Land Consolidation Act, 97 Pub. 

L. 459, 96 Stat. 2515 (Jan. 12, 1983), as 

amended; American Indian Probate Reform 

Act (AIPRA) of 2004, 108 P.L. 374, 118 Stat. 

1773 (Oct. 24, 2004); R.S. 161; 5 U.S.C. 301. 

Interpret or apply sec. 7, 32 Stat. 275, 34 Stat. 

1018, sec. 1, 35 Stat. 444, sec. 1 and 2, 36 

Stat. 855, as amended, 856, as amended, sec. 

17, 39 Stat. 127, 40 Stat. 579, 62 Stat. 236, 

sec. 2, 40 Stat. 606, 68 Stat. 358, 69 Stat. 666: 

25 U.S.C. 378, 379, 405, 404, 372, 373, 483, 

355, unless otherwise noted. 

4a. The cross references for part 152 

are revised to read as follows: 

Cross-references: For further regulations 

pertaining to the sale of irrigable lands, see 

parts 160, and 159 and § 134.4 of this 

chapter. For Indian money regulations, see 

parts 115, 111, 116, and 112 of this chapter. 

For regulations pertaining to the 

determination of heirs and approval of wills, 

see part 15 and subpart G of part 11 of this 

chapter. 

5. Revise the heading of part 152 to 

read as set forth above. 

6. Remove §§ 152.1 through 152.3, 

including the center heading preceding 

§ 152.3. 

7. Remove §§ 152.17 through 152.35, 

including the center headings preceding 

§§ 152.17, 152.33, and 152.34. 

8. Redesignate §§ 152.4 through 152.8 

as §§ 152.701 through 152.705. 

9. Redesignate §§ 152.9 through 

152.16 as §§ 152.801 through 152.808. 

Subpart H—Patents in Fee, Certificates 

of Competency, and Orders Removing 

Restrictions 

10. Designate §§ 152.701 through 

152.705 as subpart H and add a subpart 

heading to read as set forth above. 

Subpart I—Special Provisions 

Applicable to the Osage and Five 

Civilized Tribes 

11. Designate §§ 152.705 and 152.801 

as subpart I and add a subpart heading 

to read as set forth above. 

12. Add subparts A through G to read 

as set forth below. 

Subpart A—General Provisions 

Sec. 

152.1 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 coowner(s)? 

152.208 Is tribal consent required to convey 

an interest in trust or restricted land 

located within the tribe’s jurisdiction? 

152.209 Is payment required for a 

negotiated sale, exchange, or gift? 

152.210 When must fair market value be 

determined and provided to the grantor? 

152.211 When must the Secretary receive 

payment for the conveyance of the land? 

152.212 How does the Secretary decide 

whether to approve a negotiated sale, 

gift, or exchange? 

152.213 How does the negotiated sale or 

exchange occur? 

152.214 When is a negotiated sale, gift or 

exchange effective? 

152.215 How does an Indian Land 

Consolidation Program lien attach? 

152.216 How is an Indian Land 

Consolidation Program lien removed? 

152.217 When can a co-owner acquire an 

interest previously acquired on behalf of 

a tribe? 

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? 


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Subpart G—Mortgages and Deeds of Trust 

152.601 What does this subpart do? 

152.602 How do owners submit an 

application for approval of a mortgage or 

deed of trust? 

152.603 How will the Secretary review the 

application? 

152.604 How may the mortgage or deed of 

trust be enforced? 

152.605 Does the land remain in trust as a 

result of foreclosure or sale? 

152.606 How does the Paperwork 

Reduction Act affect this part? 

Subpart A—General Provisions 

§ 152.1 What does this part do? 

This part explains the policy and 

procedures for conveying trust or 

restricted Indian land or removing 

Indian land from trust or restricted 

status. 

§ 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. 

§ 152.3 Will the Secretary provide 

ownership information? 

Yes. We will provide ownership 

information under part 150 of this 

chapter to an individual or tribe 

interested in conveying or acquiring by 

negotiated sale, gift, or exchange. We 

will, through the Land and Title 

Records Office and the local BIA 

Agency and local Trust Officer, provide 

the names and mailing addresses of the 

owners of a parcel of trust or restricted 

lands, the location of the parcel, and the 

percentage of undivided interest owned 

by each owner. A request for ownership 

information must be in writing and 

must include the legal description or 

other identifier of the parcel and how 

the applicant meets the requirements of 

§ 152.4. 

§ 152.4 To whom will the Secretary provide 

ownership information? 

Anyone may receive information 

under part 150 of this chapter. We will 

provide ownership information to: 

(a) Owners, including owners holding 

an interest in fee status, of a parcel of 

trust or restricted land on the same 

reservation; 

(b) The tribe that exercises 

jurisdiction over the parcel; 

(c) A person eligible for membership 

in that tribe; 

(d) Any person or entity that is 

leasing, using, consolidating, or 

applying to lease, use or consolidate 

trust or restricted lands on that 

reservation; or 

(e) Anyone authorized by an 

individual owner to receive the 

information. 

§ 152.5 Which subparts do not apply to 

Alaska? 

(a) Subparts B and D of this part do 

not apply to Alaska. 

(b) In subparts C and E of this part, 

the term ‘‘tribe’’ includes the Metlakatla 

Indian Community but does not include 

any other Alaska tribe. 

(c) Subparts F, G and H of this part 

apply in their entirety to individually 

owned restricted lands in Alaska. 

Subpart B—Sales and Exchanges of 

Tribal Trust or Restricted Land 

§ 152.101 What transactions are covered 

by this subpart? 

Except as provided in this subpart or 

as authorized by a specific act of 

Congress, tribal land may not be sold, 

exchanged, or otherwise conveyed. This 

subpart authorizes us to approve: 

(a) Negotiated sales and exchanges of 

tribal land, where made under a land 

consolidation plan approved by us 

under this subpart; and 

(b) Exchanges of tribal land, when the 

fair market value of the land being 

received in exchange is substantially 

equal to or greater than the fair market 

value of the tribal land being conveyed. 

Sales and Exchanges Under a Land 

Consolidation Plan 

§ 152.102 What must a land consolidation 

plan include? 

A land consolidation plan must 

include: 

(a) A description and map of the 

general area within which are located 

the tribal lands and interests to be 

conveyed, and the lands and interests to 

be acquired through exchange or 

purchased with the sale proceeds; 

(b) An explanation of how the plan 

will facilitate the elimination of 

fractionation and/or the consolidation of 

tribal landholdings; and 

(c) An appropriate supporting tribal 

resolution. 

§ 152.103 Are there any restrictions on a 

land consolidation plan? 

Yes. A land consolidation plan may 

not authorize land sales or other types 

of land transactions that are prohibited 


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by the tribe’s constitution or other 

governing document. 

§ 152.104 How does the Secretary approve 

a land consolidation plan? 

We may approve the land 

consolidation plan if it is consistent 

with the requirements of this subpart. 

We will take action on the tribe’s land 

consolidation plan (or amended plan) 

within 120 working days of our 

receiving a complete plan and 

supporting tribal resolution. 

§ 152.105 How does a tribe receive 

approval for a sale or exchange under a 

land consolidation plan? 

(a) The tribe must request Secretarial 

approval for each sale or exchange made 

under an approved land consolidation 

plan by submitting a tribal resolution 

that identifies the land(s) involved and 

requests Secretarial approval for the sale 

or exchange. 

(b) Upon receiving an appropriate 

authorizing resolution requesting 

approval for a sale or exchange, we will: 

(1) Prepare a conveyance instrument; 

and 

(2) Determine fair market value. 

(c) We will approve the sale or 

exchange of land if: 

(1) The land being sold or exchanged 

is identified for conveyance in an 

approved land consolidation plan; and 

(2) The tribe receives payment equal 

to at least 90 percent of the fair market 

value of the land being sold or 

exchanged. Such payment may include 

any combination of cash or land equal 

to or greater than the requisite 

percentage. 

§ 152.106 How may the tribe use the 

proceeds of a sale or exchange? 

(a) Any proceeds from any sale or 

exchange made under an approved 

tribal land consolidation plan must be: 

(1) Deposited in a segregated, interestbearing trust account established and 

maintained by the Secretary; and 

(2) Used only for the purchase of 

other lands, as identified in the land 

consolidation plan. 

(b) Any fee land purchased with the 

proceeds derived from any sale or 

exchange made under an approved land 

consolidation plan may be placed in 

trust status upon satisfying any 

applicable requirements in part 151 of 

this chapter. 

Exchanges Without a Land 

Consolidation Plan 

§ 152.107 In the absence of an approved 

land consolidation plan, how does a tribe 

get approval for an exchange of tribal land? 

(a) To obtain approval for an exchange 

of tribal land, a tribe must submit an 

appropriate authorizing resolution that 

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. 

§ 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 

§ 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. 

§ 152.202 What transactions are covered 

by this subpart? 

(a) Transactions covered by this part 

include: 

(1) Negotiated sales, gifts, and 

exchanges, whereby a conveyance 

instrument is executed by or on behalf 

of the trust or restricted owners, subject 

to Secretarial approval; and 

(2) Partitions accomplished by 

exchanges of deeds among all of the 

owners, rather than by application to 

the Secretary under subpart F of this 

part. 

(b) The following transactions are not 

covered by this subpart: 

(1) Conveyances made by the 

Secretary without the consent of all of 

the owners; and 

(2) Conveyances or purchases made 

during a probate of trust or restricted 

land. 

§ 152.203 Who may convey an interest in 

trust or restricted land? 

(a) Unless otherwise prohibited by 

law, the following individuals or 

entities may convey an interest in trust 

or restricted land with the approval of 

the Secretary: 

(1) Any individual owner 18 years of 

age or older may convey his or her 

interest; 

(2) Guardians, conservators, or other 

fiduciaries who are appointed by a court 

of competent jurisdiction and who have 

been granted the authority to convey, 

may convey trust or restricted land 

belonging to their Indian wards who are 

minors, non compos mentis, or 

otherwise under legal disability; and 

(3) Parents may convey their 

children’s fractional interests in trust or 

restricted land only for the purposes of 

consolidation. 

(b) Except where otherwise 

prohibited, an adult or legal entity who 

has been given a written power of 

attorney may convey trust or restricted 

land. The power of attorney must: 

(1) Meet all of the formal 

requirements of any applicable tribal or 

state law; 

(2) Identify the attorney-in-fact and 

the land to be conveyed; and 

(3) Describe the scope of the power 

granted and any limits thereon. 

§ 152.204 Who can receive an interest in 

trust or restricted lands? 

(a) Subject to the conditions in this 

subpart, trust or restricted land may be 

conveyed in trust status to: 

(1) The tribe having jurisdiction over 

the parcel; 

(2) Any Indian, as defined in § 152.1; 

or 

(3) Any trust or restricted co-owner, 

as identified in our records as of the 

date on which the grantor’s application 

to convey is filed. 

(b) Subject to the restriction in 

§ 152.205, any individual or entity may 

receive the interest in fee status. In 

addition, any individual or entity not 

eligible under paragraph (a) of this 

section to receive an interest in trust 

status must receive the interest in fee 

status. 

§ 152.205 What restrictions apply to a 

conveyance of trust or restricted land to fee 

status? 

An owner of trust or restricted land 

who applies to convey that interest to 

fee status must notify the tribe with 

jurisdiction over the parcel and provide 

us with a copy of the notification. 

(a) Except as provided in paragraph 

(b) of this section, when the tribe with 

jurisdiction over the parcel receives 

notice, the tribe: 

(1) Has a maximum of 30 days to 

notify us of its intent to purchase; and 

(2) Has the opportunity within 30 

days after its statement of intent to: 

(i) If the conveyance is a sale, pay the 

purchase price; 

(ii) If the conveyance is a gift, pay the 

fair market value; or 


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(iii) If the conveyance is an exchange, 

pay the total payment received by the 

grantor. 

(b) The tribe may not exercise its 

rights under paragraph (a) of this 

section, if the parcel or interest to be 

conveyed is part of a family farm and is 

being conveyed to a member of the 

grantor’s family who is residing on, or 

working, the farm. For purposes of this 

section, ‘‘member of the grantor’s 

family’’ means: 

(1) A lineal descendant of the grantor; 

(2) A lineal descendant of the 

grandparents of the grantor; or 

(3) The spouse of the grantor or of a 

person described in paragraphs (b)(1) or 

(b)(2) of this section. 

(c) Where a conveyance is made to a 

family member under paragraph (b) of 

this section, the deed must include a 

statement that the tribe will have the 

rights identified in paragraph (a) of this 

section if the grantee attempts to convey 

to a non-family member, except if the 

conveyance is a mortgage or deed of 

trust or the tribe provides a written 

waiver of its right to purchase. 

§ 152.206 How does an owner initiate a 

negotiated sale, gift, or exchange? 

To initiate a negotiated sale, gift, or 

exchange, the owner must provide us 

with a written request that includes the 

following: 

(a) A description of the land; 

(b) The proposed grantee and his or 

her tribal affiliation, if any; 

(c) Any limitations or encumbrances 

known by the grantor on his or her right 

to convey the land; 

(d) Any intention to reserve rights to 

the land; 

(e) Whether the owner waives his or 

her right to receive information 

regarding fair market value for this 

transaction under § 152.210(b); and 

(f) Terms of the sale, gift, or exchange. 

§ 152.207 Does a conveyance of a 

fractional interest require the consent of the 

co-owner(s)? 

No. An Indian may convey a 

fractional interest without the consent 

of co-owner(s). 

§ 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. 

§ 152.209 Is payment required for a 

negotiated sale, exchange, or gift? 

No. A conveyance may be made to 

any individual or entity at any 

negotiated price or for no payment. Our 

approval of the conveyance does not 

constitute a breach of trust if either: 

(1) We have provided to the grantor 

an estimate of value; or 

(2) The grantor waives the right to 

information about fair market value in 

accordance with § 152.210. 

§ 152.210 When must fair market value be 

determined and provided to the grantor? 

(a) Except as provided in paragraph 

(b) of this section, the grantor must be 

notified of the fair market value of his 

or interest. 

(b) The grantor may waive the right to 

be provided with fair market value 

information on the interest being 

conveyed only if: 

(1) The grantee acquires the interest in 

trust or restricted status; and 

(2) One of the following criteria is 

met: 

(i) The grantee is an Indian and is the 

grantor’s spouse, lineal ancestor, lineal 

descendant, sibling, or blood relative; or 

(ii) The interest being conveyed is a 

fractional interest of 5 percent or less, as 

reflected in our records as of the date on 

which the application is filed, and the 

grantee is an Indian co-owner or the 

tribe having jurisdiction over the parcel. 

(c) If the interest has been conveyed 

under paragraph (b) of this section, the 

interest may not be conveyed out of 

trust or restricted status for 5 years. 

§ 152.211 When must the Secretary 

receive payment for the conveyance of the 

land? 

(a) We must receive any payment, on 

behalf of the grantor, no later than when 

the grantor executes the deed, unless: 

(1) The grantor agrees to a deferred 

payment; 

(2) The purchaser is the Federal 

Government; or 

(3) The payment is escrowed. 

(b) To proceed by a deferred payment 

under paragraph (a) of this section, we 

may develop a memorandum of sale, or 

approve a memorandum of sale 

developed by the parties to the sale, that 

includes the following terms: 

(1) A contract for delivery of title 

upon payment in full of the amount of 

the agreed payment; 

(2) How revenues will be distributed 

during the period of the deferred 

payment; 

(3) Late fees and penalties for failure 

to comply with the terms of the sale; 

(4) Contract adjustments; 

(5) If the conveyance is to fee status, 

terms requiring that the purchaser pay 

not less than 10 percent of the purchase 

price in advance and terms for the 

payment of the remaining amount in 

installments plus interest acceptable to 

the Secretary and the Indian owner; and 

(6) Provisions for default, including a 

provision that if the purchaser defaults 

in the first or subsequent payments, all 

payments, including interest, previously 

made will be forfeited to the Indian 

owner(s). 

(c) With a deferred payment under 

paragraphs (a) and (b) of this section, we 

will hold the deed executed by the 

grantor(s). We will approve and deliver 

the deed only upon full compliance 

with the terms of sale. 

§ 152.212 How does the Secretary decide 

whether to approve a negotiated sale, gift, 

or exchange? 

We will review the application and 

may approve a negotiated sale, gift, or 

exchange if: 

(a) It does not increase the number of 

fractional interests; 

(b) There is no evidence of fraud or 

undue influence, or criminal 

inducement; 

(c) There is no reason to believe the 

grantor lacks the legal capacity to 

convey; and 

(d) The parcels conveyed and 

acquired will have access to the parcel 

as required by law. 

§ 152.213 How does the negotiated sale or 

exchange occur? 

(a) The purchaser or grantee must 

deposit with us any proceeds from a 

negotiated sale or exchange and we 

shall deposit the proceeds into the 

grantor’s Individual Indian Money 

account upon our approval. 

(b) The grantor will execute the 

conveyance document, which must: 

(1) Include the date of execution and 

the land description; and 

(2) Comply with any boundary 

standards established by the Department 

of the Interior, if the parcel is conveyed 

in trust. 

(c) We must promptly record the 

conveyance document at the Land Title 

Records Office. 

§ 152.214 When is a negotiated sale, gift, 

or exchange effective? 

(a) A negotiated sale, gift, or exchange 

is effective when we approve the deed. 

(b) If we approve the deed after the 

grantor dies, the sale, gift, or exchange 

is effective on the date the grantor 

signed the deed. 

(c) If land is purchased for the tribe 

under the Indian Land Consolidation 

Program, title will vest in the tribe on 

the date the conveyance is approved, 

subject to the type of lien described in 

25 U.S.C. 2213(b). 


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§ 152.215 How does an Indian Land 

Consolidation Program lien attach? 

A lien in the amount of the purchase 

price will attach to the income derived 

from any interest purchased for a tribe 

under the Indian Land Consolidation 

Program, until the lien has been 

satisfied or we remove it. Pending such 

satisfaction or removal, all transaction 

documents entered into or approved 

after the date of attachment must 

provide for the payment of income 

directly to us, for deposit in the 

Acquisition Fund for the Indian Land 

Consolidation Program. 

§ 152.216 How is an Indian Land 

Consolidation Program lien removed? 

(a) In consultation with a tribe, we 

may remove a lien on income derived 

from an acquired interest. 

(1) The removal may be based on 

income derived from any interest 

conveyed to the tribe under the Indian 

Land Consolidation Program. 

(2) The total of liens that we remove 

in a year may not exceed the total 

income deposited in the Acquisition 

Fund for the tribe during that period. 

(b) We may remove at any time a lien 

on income derived from an acquired 

interest if we make a finding that: 

(1) The costs of administering the 

interest will exceed the projected 

income to be derived therefrom; or 

(2) The amount secured by the lien 

will not be recovered within a 

reasonable period of time. 

§ 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. 

§ 152.218 What if there are liens or other 

encumbrances on the lands to be 

conveyed? 

(a) If there are encumbrances that may 

transfer with the land, then no further 

action will be taken. 

(b) All financial liens, including 

collection of construction charges or 

other restrictions, must be cleared 

before conveyance. 

§ 152.219 How does a transaction affect 

collection of construction costs for 

irrigation projects? 

(a) If the land will remain in trust or 

restricted status following the sale, gift 

or exchange, then collection of all 

construction costs within Indian 

irrigation projects is deferred as long it 

remains in trust or restricted status. 

However, the following conditions 

apply: 

(1) At the time of sale, we will deduct 

delinquent operation and maintenance 

charges from the proceeds of the sale 

unless the seller makes acceptable 

arrangements to provide for their 

payment before approval of the sale; and 

(2) We will insert a lien clause 

covering all unpaid irrigation 

construction costs, past and future, in 

the instrument of conveyance issued to 

purchasers of restricted or trust lands 

that are under an Indian irrigation 

project. 

(b) If the land is conveyed in fee 

status, then the person acquiring the 

land must enter into an agreement to 

pay: 

(1) The pro rata share of the 

construction of the project chargeable to 

the land; 

(2) All construction costs that accrue 

in the future; and 

(3) All future charges assessable to the 

land which are based on the annual cost 

of operation and maintenance of the 

irrigation system. 

Subpart D—Tribal Parcel Purchase 

§ 152.301 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. 

§ 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 nonconsenting owners may include the 

interests of any undetermined heirs or 

devisees of trust or restricted interests 

and the interests of any owners whose 

whereabouts are unknown. 

(c) An individual owner in authorized 

possession of the entire parcel may 

preempt the tribe’s application and 

succeed to the tribe’s right to purchase, 

under certain conditions as described in 

§ 152.305. 

(d) Our authority to approve and 

implement a parcel purchase under this 

section by executing the necessary 

conveyance instrument is not affected or 

diminished by the existence of a tribal 

land consolidation plan approved under 

subpart B of this part. 

§ 152.303 How does a tribe apply for a 

parcel purchase? 

(a) A tribe may apply for a parcel 

purchase when the tribe has either: 

(1) Acquired at least 50 percent of the 

interests in a parcel; or 

(2) Obtained the consent of the 

owners of at least 50 percent of such 

interests, including interests already 

owned by the tribe. 

(b) An application for parcel purchase 

must include: 

(1) An appraisal prepared in 

accordance with Uniform Standards for 

Professional Appraisal Practice that 

establishes the fair market value of the 

parcel as of the date the application is 

filed; 

(2) A certified title report or consent 

forms from the owners, reflecting that 

the tribe has met the requirements of 

paragraph (a) of this section; and 

(3) A deposit of the purchase funds 

needed to compensate the owners of all 

of the non-consenting and non-tribal 

consenting interests in the parcel, based 

on the tribe’s appraisal. 

(c) This paragraph applies when a 

tribe has acquired at least 50 percent of 

the interests in a parcel, but is unable 

to furnish the deposit required by 

paragraph (b)(3) of this section. Under 

certain circumstances, we may provide 

the funds needed to complete the parcel 

purchase. 

§ 152.304 How and when will owners be 

notified of an application for tribal parcel 

purchase? 

(a) Upon receiving an application for 

parcel purchase under § 152.303, we 


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must notify any non-consenting owners 

of the tribe’s intent to purchase their 

interests under this subpart, even if they 

have previously refused to consent. 

(1) The notice must provide the nonconsenting owners with copies of the 

appraisal and advise that the tribe has 

offered to purchase their interests at fair 

market value or better, as reflected by 

the tribe’s appraisal. 

(2) If the fair market value is adjusted 

upon review of the appraisal under 

§ 152.306, we must again provide notice 

of the offer to purchase under paragraph 

(a) of this section. 

(b) We will conduct a reasonable 

search for any owners whose 

whereabouts are unknown. We will give 

notice to owners whose whereabouts are 

unknown by publication in at least one 

newspaper of general circulation in the 

area of the parcel at least 90 days before 

closing of the purchase. 

(c) Any notice given under this 

section must: 

(1) Instruct the owners to submit 

objections to the appraisal within 90 

days from the date of the notice; and 

(2) Advise that any owner who has 

been in authorized possession of the 

entire parcel for at least 3 years before 

the tribe’s application can purchase the 

parcel after notifying us of the intent to 

purchase as required by § 152.305. 

§ 152.305 Can an individual owner 

preempt and succeed a tribe’s right to 

purchase? 

(a) An individual owner in actual use 

and possession of the entire parcel for 

3 years before the tribe’s purchase 

application may preempt and succeed to 

the tribe’s right to purchase the interests 

of other individual owners. To do this, 

he or she must submit to us a notice of 

intent to purchase within 90 days of 

receiving the notice described in 

§ 152.304. The individual owner’s 

notice of intent to purchase must 

include: 

(1) Proof of authorized possession 

during the requisite 3-year period; and 

(2) A deposit of the purchase funds 

needed to compensate the owners of the 

remaining or non-purchaser’s interests, 

based on the tribe’s appraisal. 

(b) We will review the individual 

owner’s notice of intent and determine 

if the individual owner has been in 

authorized possession of the entire 

parcel for the requisite 3-year period. 

(1) If the individual owner is found to 

be qualified, we will refund the deposit 

made by the tribe and process the 

application of the owner exercising the 

option to purchase. 

(2) We must then advise the 

individual owner that: 

(3) All of the outstanding individually 

owned interests in the parcel will be 

conveyed without further owner 

consent, based on tribe’s original 

application; and 

(4) Any tribally owned interests in the 

parcel will be conveyed only with the 

consent of the tribe. 

§ 152.306 How and when will the Secretary 

review an application for parcel purchase? 

(a) We will review the appraisal and 

any objections to it after: 

(1) The notice period required by 

§ 152.304(a) ends; and 

(2) We determine whether the 

application is to be processed on behalf 

of the initiating tribe or any individual 

owner exercising an option to purchase. 

(b) If we do not approve the appraisal, 

we will establish fair market value and 

notify the tribe what additional funds 

are needed to compensate the 

outstanding owners at fair market value. 

If we approve the appraisal, we will 

notify any objecting owner of the right 

to appeal under Part 2 of this title, 

before taking any further action on the 

application. 

(c) If it appears that all of the interests 

in the parcel can be purchased by 

agreement among the owners, we must 

withhold action on the application and 

assist in preparing the conveyance 

documents needed to affect the parcel 

purchase by negotiated conveyance. If it 

appears that some of the interests 

cannot be purchased by negotiation, we 

must issue a formal decision on the 

application and execute the conveyance 

instrument needed to affect the parcel 

purchase. 

§ 152.307 How and when will the 

conveyance instrument be executed? 

(a) No sooner than 30 days after the 

exhaustion of any appellant’s 

administrative remedies, we must issue 

a conveyance order transferring the 

remaining or non-purchaser’s interests 

in the parcel, subject to any existing 

liens and encumbrances. The order may 

include any interests owned by the tribe 

if: 

(1) A qualifying owner has exercised 

his or her option to purchase; and 

(2) The tribe has consented to convey 

its interest by an appropriate 

authorizing resolution. 

(b) When we issue the conveyance 

order, we must: 

(1) Notify all owners whose interests 

have been conveyed as required by 

§ 152.304; and 

(2) Record the conveyance order in 

the appropriate Land Titles and Records 

Office as required by part 150 of this 

chapter, and in the appropriate county 

office if interests in fee status are 

involved. 

Subpart E—Consolidation by Sale of 

Highly Fractionated Parcels 

§ 152.401 What terms do I need to know? 

As used in this subpart: 

AIPRA means the American Indian 

Probate Reform Act of 2004. 

Consolidation by sale means a 

procedure by which the ownership of 

interests in a parcel of highly 

fractionated land is consolidated by one 

or more of the eligible bidders’ asking 

the Secretary to sell the parcel. 

Bona fide means that an owner of an 

interest in the subject parcel has, in the 

case of a residence, maintained it 

continuously for the preceding 3 years 

with permission or, in the case of a 

farm, ranch or other business, operated 

it on the parcel for the preceding 3 

years, in each case under: 

(1) A lease or other agreement that has 

been approved by the Secretary; 

(2) An owner management lease 

under AIPRA; or 

(3) Other documented permission. 

Eligible bidder means: 

(1) The tribe with jurisdiction over the 

parcel subject to consolidation by sale; 

(2) Any person who is a member or 

eligible to be a member of the tribe with 

jurisdiction over the parcel; 

(3) Any person who is a member or 

eligible to be a member of any other 

tribe if such person already owns an 

undivided interest in the parcel at the 

time of the consolidation by sale; or 

(4) Any lineal descendant of the 

original allottee of the parcel who is a 

member or eligible to be a member of a 

tribe or, with respect to a parcel located 

in California that is not within a tribe’s 

reservation or not otherwise subject to a 

tribe’s jurisdiction, who is a member or 

eligible to be a member of a tribe or who 

owns a trust or restricted interest in the 

parcel. 

Highly fractionated land means trust 

or restricted land that has either: 

(1) From 50 to 99 co-owners of 

undivided trust or restricted interests, 

with no single co-owner who owns an 

undivided trust or restricted interest in 

the parcel that is more than 10 percent 

of the entire undivided ownership of the 

parcel; or 

(2) 100 or more co-owners of 

undivided trust or restricted interests in 

the parcel. 

§ 152.402 What lands are subject to 

consolidation by sale? 

(a) Consolidation by sale applies to 

trust and restricted lands, on or off the 

reservation, that are highly fractionated 

parcels. 

(b) Consolidation by sale will include: 

(1) All of the interests in such a 

parcel, including interests held in fee 

status; and 


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(2) Surface and subsurface estates. 

(c) If the surface and subsurface 

estates have been severed, only the 

surface estate can be consolidated by 

sale under this subpart. Subsurface 

estates that have been severed cannot be 

consolidated by sale under this subpart. 

§ 152.403 How do I apply to consolidate a 

parcel by sale? 

To apply for consolidating a parcel 

you must: 

(a) Be an eligible bidder; and 

(b) Submit a completed consolidation 

by sale application form. 

§ 152.404 What must the Secretary do 

before acting on an application for 

consolidation by sale? 

(a) Upon receiving an application, we 

will decide: 

(1) Whether the parcel is highly 

fractionated; 

(2) What owner consents are needed 

and whether they have been obtained; 

(3) Costs of providing the notice; 

(4) If there are owners of interests in 

the parcel who cannot be identified or 

located, the procedures for locating 

owners whose whereabouts are 

unknown have been followed; and 

(5) The fair market value of the 

property. 

(b) If we determine that a 

consolidation for sale may proceed, then 

we will promptly notify the applicant in 

writing. The notice will include: 

(1) A statement that the application is 

complete; 

(2) The estimated costs to the 

applicant for providing notice to the 

owners of the parcel, including the costs 

of mailing and publishing the notice, 

and a statement that the applicant must 

either pay the costs or furnish a 

sufficient bond to cover such costs; 

(3) The date by which payment must 

be made to confirm intent to proceed 

with the consolidation by sale 

application; and 

(4) Any other information required to 

process the application. 

§ 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 § 152.409(b) and (c), we may 

consent on behalf of: 

(1) Heirs of trust or restricted interests 

who cannot be determined; 

(2) Minor or incompetent owners who 

have no parent or legal guardian; or 

(3) Missing owners. 

§ 152.406 How will the Secretary notify 

owners of the consolidation proceeding? 

(a) Once we determine that a 

consolidation by sale may proceed, we 

will notify all owners of undivided 

interests in the parcel and the tribe with 

jurisdiction over the parcel. The notice 

will include: 

(1) A statement that the proceeding to 

consolidate the parcel of land by sale 

has been started; 

(2) The legal description of the parcel; 

(3) Each owner’s ownership interest 

in the parcel as determined by the BIA 

based on current records; 

(4) Fair market value and instructions 

for making a written request for a copy 

of the appraisal; 

(5) A statement that the owner may 

submit written comments on or 

objections to the proposed consolidation 

by sale or to the appraisal within 90 

days of receiving the notice; 

(6) A statement that the owner must, 

within the 90-day deadline, comment 

on or object in writing to the 

consolidation proceeding or the 

appraisal in order to receive notice of 

approval of the appraisal and right to 

appeal; 

(7) The address for requesting copies 

of the appraisal and the address for 

submitting comments or objections to 

the appraisal or to the consolidation sale 

proceeding; 

(8) The name and telephone number 

of the person to contact for information 

regarding the proceeding, including the 

time and date of auction of the parcel or 

for submitting sealed bids; 

(9) Notification that the tribe may 

exercise its right to match the highest 

bid on the parcel; and 

(10) Notification that co-owners may 

have a right to purchase the parcel when 

the highest bidder has been determined. 

(b) The notice must be mailed by 

certified mail, restricted delivery, to all 

owners of interests in the parcel at 

addresses found in our current records. 

(c) If the notice is returned 

undelivered, we will attempt to obtain 

and use a current address for such 

owner by a reasonable search of records 

of: 

(1) Departmental records; 

(2) Local, state, and Federal agencies; 

(3) Land records and phonebooks; and 

(4) The tribe with jurisdiction over the 

parcel or the tribe of which the noticed 

owner is a member. 

(d) If we are unable to find any owner, 

then we will publish the notice: 

(1) At least two times in a newspaper 

of general circulation in the county or 

counties in which the parcel is located 

or, if the tribe with jurisdiction over the 

parcel publishes a monthly tribal 

newspaper or newsletter, one time in 

the tribal newspaper or newsletter and 

one time in the newspaper of general 

circulation; 

(2) By posting the notice 

conspicuously in the headquarters or 

administration building or other tribal 

building of the tribe with jurisdiction 

over the parcel in the most appropriate 

location for such a posting; and 

(3) By publishing notice in any other 

place or by other means we deem 

appropriate. 

§ 152.407 What action does the Secretary 

take on comments or objections? 

(a) We will consider all written 

comments and objections received 

within 90 days of the notice. We may: 

(1) Accept the appraisal if consistent 

with the Uniform Standards for 

Professional Appraisal Practice; 

(2) Order a new appraisal; or 

(3) Terminate the sale and notify by 

certified mail, restricted delivery, the 

applicant and all currently known 

owners of interests in the parcel. 

(b) If we receive no comments or 

objections to the consolidation by sale 

within 90 days of the notice, we will 

accept the appraisal and proceed with 

the sale. 

§ 152.408 What happens if the Secretary 

orders a new appraisal? 

(a) If we order a new appraisal, where 

the appraisal results in a lower 

valuation of the land, we will provide 

notice of the results of the new appraisal 

to all owners of interests in the parcel, 

and where the new appraisal results in 

a value of the land that is equal to or 

greater than that of the earlier appraisal, 

we will provide the results of the new 

appraisal to the tribe with jurisdiction 

over the parcel and all persons who 

submitted written comments on or 


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objections to the proposed partition or 

the appraisal, at addresses found in our 

current records with a notice including 

the following information: 

(1) The results of the new appraisal; 

(2) Notification that the owners can 

submit written comments on or 

objections to the proposed consolidation 

by sale and/or objections to the 

appraisal within 90 days of receiving 

the notice; 

(3) The address for requesting copies 

of the appraisal and address for 

submitting comments or objections to 

the appraisal and/or consolidation sale 

proceeding; and 

(4) The name and telephone number 

of the person to contact for information 

regarding the proceeding, including the 

time and date of auction of the parcel or 

for submitting sealed bids. 

(b) We will send the notice of the new 

appraisal by certified mail, restricted 

delivery, to the tribe with jurisdiction 

over the parcel. 

(c) If we accept the appraisal, we will 

send a notice of acceptance to the tribe 

with jurisdiction over the parcel and to 

all persons who submitted written 

comments on or objections to the 

proposed consolidation or appraisal. 

The notice will include: 

(1) Results of the appraisal, which 

will set the minimum bid for the 

consolidation by sale; 

(2) Rights of each interest owner to 

review a copy of the appraisal; 

(3) A statement that the land will not 

be sold for less than the appraised 

value; 

(4) The time and date set for the 

auction of the parcel, or for submitting 

sealed bids; and 

(5) The owner’s right to appeal, to 

whom the appeal should be submitted, 

and the owner’s burden to submit 

evidence in support of the appeal. 

§ 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 § 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. 

§ 152.410 How will the Secretary notify 

owners of a sale after appeals have been 

decided? 

After all appeals are final, we will set 

a time and date for a consolidation sale. 

The sale will be conducted no sooner 

than 30 days after we have mailed, via 

certified mail, restricted delivery, a 

notice of the sale to those owners 

providing comments or objections to the 

Notice of Appraisal and Sale or those 

person(s) requesting notification of sale 

and the tribe having jurisdiction over 

the parcel. In addition, we will publish 

a notice of sale: 

(a) In a newspaper of general 

circulation in the county or counties in 

which the parcel is located or a tribal 

newspaper; 

(b) By posting the notice 

conspicuously in the tribal headquarters 

or administration building; and 

(c) In such other locations and 

manner as we deem necessary. 

§ 152.411 Who may participate in an 

auction or sealed bid sale? 

We will conduct the sale either by 

public auction or sealed bid as 

appropriate. 

(a) Only eligible bidders may 

participate in the auction or sealed bid 

sale. 

(b) To participate in a sealed bid sale, 

a bidder must submit a deposit of 10 

percent of the full amount of the bid for 

the parcel, including for his own 

ownership interest in the parcel. The 

value of the bidder’s ownership interest 

will be deducted when the final 

payment amount is calculated. 

§ 152.412 How does a tribe reserve its 

right to match the highest bid? 

Before receiving the notice of sale 

issued under § 152.415, the tribe must 

have submitted a copy of the 

authorizing tribal law or resolution or a 

letter of a tribal officer authorized by 

tribal law, stating the tribe’s intent to 

reserve the right to match. 

§ 152.413 How will the Secretary determine 

the successful bidder? 

(a) The parcel will be sold to the 

highest bidder unless certain other 

purchasers listed in paragraph (b) of this 

section match the highest bid. The sale 

price must be at least equal to the final 

appraised fair market value. 

(b) We will determine which entities 

have a right to match the highest bid. 

The right to match depends on the 

following criteria: 

(1) If the highest bidder is a member 

of the tribe with jurisdiction over the 

parcel, then he/she may purchase the 

parcel, unless one of the restrictions in 

paragraph (c) of this section applies; and 

(2) If the highest bidder is a not a 

member of the tribe with jurisdiction 

over the parcel, then the highest bidder 

may purchase the parcel, unless one of 

the restrictions in paragraph (d) of this 

section applies. 

(c) A highest bidder who otherwise 

qualifies under paragraph (b)(1) of this 

section may not purchase the parcel if 

either of the following conditions 

applies: 

(1) The owner of the largest interest is 

a member of the tribe with jurisdiction 

over the parcel, chooses to purchase the 

parcel, and meets each of the following 

requirements: 

(i) The owner had submitted a bid on 

the parcel at sale at least equaling the 

fair market value; 

(ii) At the time immediately before the 

sale, the owner’s undivided interest in 

the parcel was greater than that of any 

other owner and equal to or greater than 

20 percent of the entire undivided 

ownership of the parcel; and 

(iii) The owner submits to us, within 

3 days of the date of auction or date for 

submitting sealed bids, a written notice 

of intent to purchase the parcel; or 

(2) If no single owner is identified as 

eligible to buy the parcel under 

paragraph (c)(1) of this section, and two 

or more owners who have equal 

interests, which combined are greater 

than any other individual interests in 

the parcel and constitute at least 20 

percent of the entire undivided 

ownership in the parcel, have entered 

into a written agreement that identifies 

which of these owners has the right of 

purchase. 

(d) A highest bidder who otherwise 

qualifies under paragraph (b)(2) of this 

section may not purchase the parcel if 

either of the following conditions 

applies: 

(1) The owner of the largest interest in 

the parcel at the time of the sale is a 

member of the tribe with jurisdiction 

over the parcel and meets each of the 

following requirements: 

(i) The owner had submitted a bid on 

the parcel at sale at least equaling the 

fair market value; 

(ii) At the time immediately before the 

sale, the owner’s undivided interest in 

the parcel was greater than that of any 

other owner and equal to or greater than 

20 percent of the entire undivided 

ownership of the parcel; 

(iii) The owner submits a written 

notice of intent to purchase the parcel 

to us, within 3 days of the date of 


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auction or the date for submitting sealed 

bids; and 

(iv) The owner tenders the amount of 

the highest bid within 30 days of the 

date of auction or submission of sealed 

bids; or 

(2) No single owner is identified 

under paragraph (d)(1) of this section, 

then two or more owners who each have 

identical interests equal to or greater 

than 20 percent of the interests in the 

parcel, match the highest bid and have 

entered into a written agreement that 

identifies which of these owners has the 

right to match the highest bid. 

(e) If no single owner or group of two 

or more owners are identified under 

paragraphs (d)(1) or (d)(2) of this 

section, and the tribe with jurisdiction 

has reserved its right under § 152.412 to 

match the bid of the highest bidder, the 

tribe may proceed to exercise this right. 

It may do so by stating its intention to 

match the bid within 6 business days 

after the date of auction or for 

submitting sealed bids. 

§ 152.414 What happens if no bid matches 

the fair market value? 

(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. 

§ 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 § 152.413 will be notified 

and provided an opportunity to tender 

payment in 30 days; 

(b) If there is no entity identified in 

§ 152.413 that has exercised its right to 

match or preempt the highest bid, then 

we will notify the next highest bidder 

and provide an opportunity to tender 

payment in 30 days; 

(c) If there are no successful bids 

higher than fair market value, then the 

Secretary may purchase the parcel or 

may elect to terminate the consolidation 

proceeding or reschedule the sale (see 

§ 152.414(b)). 

§ 152.416 How will proceeds be 

distributed? 

We will distribute the proceeds of sale 

of the parcel to the owners of interests 

in the parcel in proportion to the 

ownership interest of each owner. We 

will hold the following proceeds until 

owners and heirs can be determined: 

(a) Proceeds attributable to the sale of 

interests of owners whose whereabouts 

are unknown; and 

(b) Proceeds of undetermined heirs, or 

persons whose ownership interests have 

not been recorded. 

§ 152.417 Is Federal financial assistance 

available to support a bidder’s purchase? 

We may provide grants and low 

interest loans to successful bidders at 

consolidation sales of parcels, but this 

assistance: 

(a) Is limited to 20 percent of the 

appraised value of the parcel sold; and 

(b) Must be applied only toward the 

purchase price of the parcel sold. 

§ 152.418 What title is acquired? 

(a) The title is acquired as follows: 

(1) In trust, free and clear of any and 

all title or ownership of all persons or 

entities whose interest were subject to 

the sale, except the United States; and 

(2) Subject to valid existing rights, 

such as mortgages, easements, or rightsof-way. 

(b) We will execute an appropriate 

transfer document effecting the sale and 

recorded in the LTRO. 

Subpart F—Partitions in Kind 

§ 152.501 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. 

§ 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. 

§ 152.503 How can an owner initiate a 

partition action? 

Any owner of a fractional interest may 

apply to us for a partition by submitting 

a partition plan that contains the 

following information: 

(a) Legal descriptions of the parcel to 

be partitioned and the smaller parcels to 

be created therefrom, with an 

accompanying survey if the smaller 

parcels cannot be described by aliquot 

parts; 

(b) Appraisals of the parcel to be 

partitioned and the smaller parcels to be 

created from the parcel; and 

(c) Identification of ownership of the 

parcel to be partitioned and the 

proposed ownership of the smaller 

parcels to be created therefrom, with an 

accompanying title report for the whole 

parcel. 

§ 152.504 How will you notify the 

applicant’s co-owners of an application for 

partition? 

(a) Upon receiving an application for 

partition under § 152.503, we must 

notify the owners of the parcel to be 

partitioned and provide them with 

copies of the applicant’s partition plan. 

We will take the following steps to 

notify all owners: 

(1) We will make a reasonable search 

for any owners whose whereabouts are 

unknown; 

(2) After this search, we will send a 

written notice of the application to all 

owners whose whereabouts we could 

determine; and 

(3) To notify owners we could not 

locate, we will publish a notice in 

newspapers of general circulation in the 

area of the parcel to be partitioned. 

(b) Our notice will instruct the owners 

to submit comments or objections or 

alternative partition plans to us, within 

90 days of the date that we mail and 

publish the notice. 

(c) We must treat the submission of an 

alternative partition plan as a new 

application requiring additional notice 

and invitations for comment. 

§ 152.505 How and when will you review 

an application? 

(a) At the end of the notice period 

required by § 152.504(c), we must verify 

the ownership of the parcel to be 

partitioned, and review the partition 

plans and any comments. 

(1) If it appears that the parcel can be 

partitioned by agreement among all the 

owners, we must assist in preparing the 


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conveyance documents needed to effect 

a partition by exchange of interests. 

(2) If it appears that the parcel cannot 

be partitioned by agreement, we must 

issue a formal decision on the 

application(s). 

(b) In evaluating an application to 

partition, we must determine if the 

parcel can be partitioned equitably 

among all of the owners. In making that 

determination, we will consider 

whether: 

(1) After partition, each owner would 

hold property equal in value to that held 

before partition, in proportion to the 

interests of the other owners; 

(2) The smaller parcels created by the 

partition would be economically usable, 

based upon characteristics such as size, 

location, access, etc.; 

(3) Any owner has a history of using 

areas within the parcel to be partitioned, 

that would justify those areas being 

equitably partitioned and conveyed to 

that owner; and 

(4) The parcel to be partitioned 

contains any sites of particular cultural, 

historical, or other significance to more 

than one owner, that would make it 

inequitable to partition those sites and 

convey them to a single owner. 

(c) Upon a determination that a parcel 

cannot be partitioned in an equitable 

manner, we must notify the applicant of 

the right to appeal under part 2 of this 

chapter. Upon a determination that a 

parcel can be partitioned in an equitable 

manner, we must notify any owner that 

objected or submitted an alternative 

partition plan of his or her right to 

appeal under part 2 of this chapter, 

before taking any further action on the 

application. 

§ 152.506 When will you execute the 

conveyance instruments? 

(a) No sooner than 30 days after 

exhausting any appellant has exhausted 

his or her administrative remedies, if 

our determination under § 152.505(c) 

has been affirmed, we must issue a 

partition order. The order may include 

reference to any existing liens and 

encumbrances. 

(b) Upon issuance of the order we will 

notify all of the affected owners, in the 

same manner as described in § 152.504. 

We must then record the partition order 

and any accompanying survey in the 

appropriate LTRO, in accordance with 

part 150 of this chapter. 

Subpart G—Mortgages and Deeds of 

Trust 

§ 152.601 What does this subpart do? 

This subpart applies to mortgaging of 

parcels of trust or restricted land owned 

by individuals, including parcels in 

which fractional interests are held in fee 

status. 

(a) This subpart explains how we can 

approve mortgages or deeds of trust 

executed by individual owners in cases 

where all of the trust or restricted 

interests in a parcel are: 

(1) Encumbered; and 

(2) Subject to foreclosure or sale if 

there is a default. 

(b) This subpart does not apply to any 

of the following: 

(1) Mortgages of fractional interests 

held in fee status; 

(2) Other types of encumbrances that 

may be executed or approved in order 

to secure a loan, including assignments 

of income derived from trust or 

restricted lands; or 

(3) Mortgages or deeds of trust of 

leasehold or other possessory interests. 

§ 152.602 How do owners submit an 

application for approval of a mortgage or 

deed of trust? 

Only the owner(s) or the proposed 

mortgagee or beneficiary can submit an 

application for approval of a mortgage 

or deed of trust. The application must 

include: 

(a) An executed mortgage or deed of 

trust to be approved; 

(b) The promissory note defining the 

amount of the loan to be secured and 

other terms; 

(c) Any other documents describing 

the remedies available to the secured 

party in the event of a default on the 

loan; 

(d) An appraisal or evaluation 

furnished by the lender or borrower that 

establishes the fair market value of the 

parcel as of the date on which the 

application for loan was filed; 

(e) The loan application and any other 

description of how the loan proceeds 

will be used; 

(f) Any credit report or credit analysis 

required, obtained, or prepared by the 

proposed mortgagee or beneficiary, with 

a verification of the borrower’s income 

or a description of other means of debt 

coverage; 

(g) Any title reports or title insurance 

policies required or obtained by the 

proposed mortgagee or beneficiary; and 

(h) Any necessary environmental or 

historic preservation documentation. 

§ 152.603 How will the Secretary review 

the application? 

(a) Within 30 days of receiving a 

complete application for approval of a 

mortgage or deed of trust, we must 

determine whether: 

(1) The land to be encumbered has 

been adequately described and the loan 

documents have been properly 

executed; 

(2) The loan-to-value ratio is 

reasonable, based on the evidence of fair 

market value in the application and the 

lender’s valuation; 

(3) The risk of default on the loan is 

reasonable, based on the evidence of the 

ability to repay in the application; 

(4) All of the owners of trust and 

restricted interests in the parcel have 

executed the mortgage or deed of trust, 

and any necessary consents have been 

obtained from other lienholders or 

encumbrancers; and 

(5) The remedies available to the 

mortgagee or beneficiary in the event of 

a default on the loan, and any rights or 

remedies available to the tribe having 

jurisdiction over the parcel in the event 

of a foreclosure or sale, are clearly 

defined in the mortgage, deed of trust, 

or other loan documents. 

(b) If we decide not to approve the 

mortgage or deed of trust, we will notify 

the parties of their rights to appeal 

under part 2 of this chapter. 

(c) If we decide to approve the 

mortgage or deed of trust, we must: 

(1) Record the approved document in 

the Land Titles and Records Office in 

accordance with part 150 of this 

chapter; and 

(2) Request an updated title status 

report reflecting the recordation. 

(d) A decision to approve a mortgage 

or deed of trust under this subpart is not 

appealable under part 2 of this chapter 

and is not considered to be a breach of 

trust. 

§ 152.604 How may the mortgage or deed 

of trust be enforced? 

(a) If an owner defaults on a loan 

secured by an approved mortgage or 

deed of trust, the encumbered land is 

subject to foreclosure or sale in 

accordance with the terms of the 

approved document and either: 

(1) The laws of the tribe having 

jurisdiction over the parcel; or 

(2) If there are no applicable tribal 

laws, the laws of the state in which the 

land is located. 

(b) If there is a foreclosure or sale to 

enforce the terms of an approved 

mortgage or deed of trust, the United 

States: 

(1) Is not a necessary party; and 

(2) Is not required to approve any 

conveyance arising out of the 

proceeding. 

§ 152.605 Does the land remain in trust as 

a result of foreclosure or sale? 

(a) If the encumbered land is 

purchased by a tribe or Indian as a 

result of a foreclosure or sale 

proceeding, title remains in trust or 

restricted status. 

(b) If the encumbered land is 

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of a foreclosure or sale proceeding, title 

will be taken consistent with the laws 

applicable to that foreclosure or sale 

proceeding. 

§ 152.606 How does the Paperwork 

Reduction Act affect this part? 

The collections of information 

contained in §§ 152.3, 152.105, 152.107, 

152.206, 152.217, 152.219, 152.303, 

152.403, 152.412, 152.503, and 152.602 

have been approved by the Office of 

Management and Budget under 44 

U.S.C. 3501 et seq. and assigned OMB 

Control Number 1076–xxxx. Response is 

required to obtain a benefit. A Federal 

agency may not conduct or sponsor, and 

you are not required to respond to a 

collection of information unless the 

form or regulation requesting the 

information has a currently valid OMB 

Control Number. 

13. Revise part 179 to read as follows: 

PART 179—LIFE ESTATES AND 

PRESENT AND FUTURE INTERESTS 

Sec. 

179.1 What is the purpose of this part? 

179.2 What terms do I need to know? 

179.3 Who can hold a life estate? 

179.4 Who can be the measuring life for a 

life estate? 

179.5 Who can be designated as a future 

interest holder? 

179.6 Who can be members of a class? 

179.7 How are interest holders determined 

if the conveyance document or order 

contains conditions? 

179.8 How are members to be determined if 

there is an open class? 

179.9 What are the privileges of a life 

tenant? 

179.10 What is the life tenant’s 

responsibility to the remainderman? 

179.11 How can a future interest holder 

stop the life tenant from damaging his or 

her interest and substantially 

diminishing its value? 

179.12 How will the Secretary distribute 

income and principal between the life 

tenant and the remainderman? 

179.13 How will the value of a current life 

estate and remainder be determined? 

179.14 How does a life estate terminate? 

179.15 What if I do not want an interest in 

a life estate? 

179.16 Why do I need to notify the 

Secretary about the death of a life tenant? 

179.17 How will term estates be treated? 

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. 

§ 179.1 What is the purpose of this part? 

This part sets forth the authorities, 

policy, and procedures governing the 

administration of life estates and 

present and future interests in Indian 

land by the Secretary of the Interior. 

These regulations do not apply to any 

use rights assigned to tribal members by 

tribes exercising their jurisdiction over 

tribal lands. This part does not apply to 

any federal statutory rights to purchase 

or otherwise acquire an interest in 

Indian land reserved to an individual or 

tribe. 

§ 179.2 What terms do I need to know? 

As used in this part: 

Class means a group of persons who 

share an interest in an estate. 

Condition means a qualification or 

restriction that must be satisfied or 

occur before an estate or interest 

commences, enlarges, reduces, or 

terminates. Condition includes 

limitations on the estates of grantor and 

grantee. Condition does not include the 

natural termination of a life estate or 

term estate. 

Contingent remainder means a 

remainder: 

(1) In an unborn person; 

(2) In a non-specified person; or 

(3) Subject to some other condition. 

Contract bonus means consideration 

paid or agreed to be paid as incentive 

for execution of the contract. 

Conveyance document means a legal 

instrument that transfers an interest in 

an estate. Conveyance document does 

not include a will. 

Disproportionately high means the 

investment expenses exceeds the 

interest income. 

Estate means the interest which a 

person has in Indian land. Estate 

include a life estate. 

Executory interest means a future 

interest which cuts short or springs from 

a preceding estate or interest that is cut 

short by a condition. 

Extant person means a living person 

or legally recognized existing entity. A 

living person does not include a child 

in gestation except when the child in 

gestation receives the estate or interest 

by probate order. If an interest is created 

in a child in gestation in a probate 

order, that a child will be treated as a 

living person only if the child survives 

at least 120 hours after its birth. 

Future interest means an interest in an 

estate with only a future right to 

possession and enjoyment of the Indian 

land, such as a remainder, executory 

interest, or reversionary interest. 

Grantee means a person who receives 

an interest in Indian land. 

Grantor means a person who transfers 

an interest in Indian land. 

Holder means a person who owns an 

estate or interest in Indian land. 

Income means the rents and profits 

from Indian land and the interest on 

invested principal. 

Indian land means all lands held in 

trust by the United States for individual 

Indians or tribes; or all lands, titles to 

which are held by individual Indians or 

tribes, subject to Federal restrictions 

against alienation or encumbrance. 

Life estate means an estate in Indian 

land the duration of which is measured 

by the life of the life tenant or other 

living person or persons. 

Life tenant means a person or persons 

who hold an interest in a life estate. 

Open class means a class in which 

membership has not been closed to 

persons qualifying as members. 

Open Mine Doctrine means the 

doctrine which allows a holder of an 

interest in a life estate to continue the 

exploration, extraction, and depletion of 

resources of the land and to receive any 

rents, royalties, or profits, without the 

consent of the remainderman, if the 

activity is in progress or a lease or 

contract is in effect when the life estate 

vested. Open Mine Doctrine applies to 

hard mineral extraction and oil and gas 

production. 

Order means a directive issued by the 

Secretary or a court of competent 

jurisdiction. 

Person means a specific, extant 

person, unless a specific section states 

otherwise. 

Present interest means an interest in 

an estate in Indian land with a right to 

possession and enjoyment that begins at 

the moment a conveyance takes effect. 

Principal means the corpus and 

capital of an interest in an estate, 

including any payment received for the 

sale or diminishment of the corpus. 

Remainder means a future interest 

which follows the termination of a life 

estate or term of years. 

Remainderman means one or more 

persons who hold a remainder. 

Reversionary interest means an 

interest that is held by the grantor and 

arises when any preceding estate in a 

grantee terminates other than by 

condition. 


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Secretary means the Secretary of the 

Interior or authorized representative. 

Term estate means an estate which 

terminates upon the expiration of a 

designated time period or surrender of 

the interest by the interest holder. 

Vested means having absolute right or 

title in property. 

We means the Secretary of the Interior 

or authorized representative. 

§ 179.3 Who can hold a life estate? 

Any person can hold a life estate 

subject to the following: 

(a) Any life estate must have no 

conditions in favor of the grantor or a 

grantee; and 

(b) If a life estate is granted to, or for 

the life of, multiple persons, the 

granting document must establish the 

share of the estate each person is to 

receive. 

§ 179.4 Who can be the measuring life for 

a life estate? 

Any specific person or persons living 

at the time we approve the conveyance 

document or upon death of the decedent 

may be the measuring life for a life 

estate. 

§ 179.5 Who can be designated as a future 

interest holder? 

Any person may be a future interest 

holder. However, no future interest 

subject to conditions in favor of the 

grantor or a grantee is valid if the 

conditions cannot be satisfied before 

either: 

(a) When we approve the conveyance 

document; or 

(b) When the decedent dies. 

§ 179.6 Who can be members of a class? 

The members of any class are those 

persons who can be identified as 

persons either when we approve the 

conveyance or upon the death of the 

decedent. 

§ 179.7 How are interest holders 

determined if the conveyance document or 

order contains conditions? 

(a) If we determine that the 

conveyance document imposes any 

condition on an interest in Indian land, 

we will determine whether the 

condition is satisfied either: 

(1) When we approve the conveyance 

document; or 

(2) When the decedent dies. 

(b) If the condition is established by 

order of some other authority, we will 

determine whether the condition is 

satisfied based upon the order. 

(c) It may happen that there are no 

persons when we approve the 

conveyance document, or at the death of 

the decedent, or by the terms of the 

order. In this case, the future interest 

that would have vested in those persons 

passes to the grantor or to the estate of 

the grantor. 

§ 179.8 How are members to be 

determined if there is an open class? 

(a) If a class is designated as a 

recipient of an interest in a conveyance 

document, we will: 

(1) Identify the persons who are 

members of the class when we approve 

the conveyance document; and 

(2) Close the class to any additional 

persons who might otherwise qualify as 

members. 

(b) If a class is designated as a 

recipient of an interest during the 

probate process under 43 CFR part 30, 

we will: 

(1) Identify the persons who are 

members of the class as of the death of 

the decedent; and 

(2) Close the class to any additional 

person who might otherwise qualify as 

members of the class. 

(c) We may close any class when we: 

(1) Have received monies attributable 

to the interests held by the class; and 

(2) Have determined that there is at 

least one person who can receive the 

monies. 

(d) We may close any open class for 

any purpose that facilitates 

identification of beneficiaries and assets 

of the trust. We may then distribute the 

trust assets to the beneficiaries. 

§ 179.9 What are the privileges of a life 

tenant? 

(a) A life tenant is granted, for the 

term of the life estate, the right to: 

(1) Possess and use estate assets; 

(2) Receive a share of the principal 

and income produced by the estate as 

set forth in § 179.12; and 

(3) Sell the life estate described in the 

conveyance document or order. 

(b) The rights in paragraph (a) of this 

section apply only in the absence of 

specific provisions to the contrary in the 

conveyance document or order. 

§ 179.10 What is the life tenant’s 

responsibility to the remainderman? 

The provisions of this section apply 

absent specific provisions to the 

contrary in the conveyance document or 

order. 

(a) The life tenant has responsibilities 

to the remainderman as shown on the 

following table. 

If the life estate was created by... Then... Except as to... 

(1) Probate order before June 20, 

2006, and the decedent died before June 20, 2006.

the responsibility of the life tenant to the remainderman is defined by 

federal law and regulation in effect at the date of the creation of 

the life estate.

distribution of monies from rents, 

cash bonus and royalties and 

valuation of the life estate and 

remainder as set forth in this 

part. 

(2) Operation of law under 25 

U.S.C. 2206 or federally approved tribal probate code approved under 25 U.S.C. 2205.

(i) The life tenant may use the land or structures on the land (including for extraction and production of minerals, oil, gas, and timber) 

without the remainderman’s consent; and 

(ii) The life tenant must not destroy the estate, commit malicious 

waste or fail to reasonably manage the land in a manner consistent 

with long-time use and trust status of the land.

(3) Conveyance document before 

the effective date of this part.

the responsibility of the life tenant to the remainderman is defined by 

federal law and regulation in effect on the date the life estate was 

created.

distribution of monies from rents, 

cash bonuses, and royalties and 

valuation of the life estate and 

remainder as set forth in this 

part. 

(4) Conveyance document after the 

effective date of this part 

(i) The life tenant may use the land or structures on the land (including for extraction and production of minerals, oil, gas, and timber) 

without the remainderman’s consent; and 

(ii) The life tenant must not destroy the estate, commit malicious 

waste, or fail to reasonably manage the land in a manner consistent with long-time use and trust status of the land.


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(b) In order to preserve and protect 

the trust, we must review and make a 

final determination on any contract 

involving trust assets, unless the law 

provides otherwise. 

(c) Our authority to consent to the 

leasing or transfer of Indian land on 

behalf of the interest holders is not 

diminished or modified by this section. 

§ 179.11 How can a future interest holder 

stop the life tenant from damaging his or 

her interest and substantially diminishing 

its value? 

If you are a future interest holder who 

feels that a life tenant may be damaging 

the estate, you may ask us to investigate 

the use of the land. If we find that the 

life tenant has taken actions not 

consistent with § 179.10, we may 

proceed as if the life tenant has 

trespassed on the property and take 

action under parts 162 and 212 of this 

chapter. 

§ 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 onehalf each to the current life tenant and 

the remainderman; 

(3) In the case of mineral contracts, 

invest the principal, with interest 

income to be paid the life tenant during 

the life estate, except in those instances 

where the administrative cost of 

investment is disproportionately high, 

in which case paragraph (e) of this 

section applies. The principal allocated 

to the remainderman under this section 

will be distributed to the remainderman 

upon termination of the life estate. The 

life tenant will receive distribution of 

the principal allocated to the life tenant 

immediately. 

(d) If the Secretary determines that 

paragraphs (a) (2), (3), or (4) of this 

section provide otherwise, the Secretary 

must distribute the income and 

principal in accordance with those 

provisions. 

(e) In all other instances, the Secretary 

shall distribute the principal 

immediately according to the formulas 

set forth in § 179.13. All proceeds 

attributable to a contingent 

remainderman or future interest holder 

subject to class whose membership is 

not closed will be invested in an 

account with disbursement to take place 

upon determination of the future 

interest holder or closing of membership 

of the class. The life tenant will receive 

distribution of the principal allocated to 

the life tenant immediately. 

§ 179.13 How will the value of a current life 

estate and remainder be determined? 

(a) We will refer to the most current 

version of Actuarial Table S, Valuation 

of Annuities, obtained from 26 CFR 

20.2031 to determine the value of your 

life estate or remainder and distribute 

principal under § 179.12(e). 

(b) Table S specifies the share 

attributable to the life estate and 

remainder’s interest, given the age of the 

life tenant and an established rate of 

return. We will periodically review and 

revise the percent rate of return to be 

used to determine the share attributable 

to the interests of the life tenant and the 

remainderman. The life tenant will 

receive the balance of the distribution 

after the remainderman’s share has been 

calculated. 

(c) Applying Table S, we will use the 

following formulae to determine the 

value of the interests of the life tenant 

and remainderman: 

(1) Value of Remainder = I * R, where 

I is the total value to be distributed and 

R is the remainder factor obtained from 

Table S for a given life tenant’s age and 

rate of return; and 

(2) Value of Life Estate = I ¥ Value 

of remainder, where I is the total value 

to be distributed and the Value of 

remainder was calculated above. 

§ 179.14 How does a life estate terminate? 

A life estate terminates upon 

whichever occurs first: 

(a) The death of the person or persons 

used to measure the duration of the life 

estate; 

(b) The transfer by the life tenant of 

the interest to the remainderman or 

grantor; or 

(c) The acquisition by the life tenant 

of all future interests. 

§ 179.15 What if I do not want an interest 

in a life estate? 

You may renounce your interest 

during the probate process before the 

order is issued or transfer your interest 

by conveyance document to another 

person. 

§ 179.16 Why do I need to notify the 

Secretary about the death of a life tenant? 

(a) You should notify us of the death 

of the life tenant or other person used 

to measure the duration of the life estate 

to ensure that: 

(1) The records properly reflect the 

present and future interests holders; and 

(2) Any proceeds received from these 

interests are correctly distributed to the 

holders. 

(b) See 25 CFR 15.104 for instructions 

on how to notify the Secretary of the 

death. 

§ 179.17 How will term estates be treated? 

For purposes of distribution of 

income, cash bonuses, and principal, we 

will treat term estates in the same 

manner as a life estate. 

Title 43—Public Lands: Interior 

Subtitle A—Office of the Secretary of 

the Interior 

PART 4—DEPARTMENT HEARINGS 

AND APPEALS PROCEDURES 

14. Revise the authority citation for 

part 4 to read as follows: 

Authority: 5 U.S.C. 301; 25 U.S.C. 9, 372–

74, 410; 43 U.S.C. 1201, 1457; Pub. L. 99–

264, 100 Stat. 61, as amended. 

15. Revise the cross reference for part 

4, subpart D, to read as follows: 

Cross-reference: For regulations pertaining 

to the processing of Indian probate matters 

within the Bureau of Indian Affairs, see 25 

CFR part 15. For regulations pertaining to the 

probate of Indian trust estates within the 


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Probate Hearings Division, Office of Hearings 

and Appeals, see 43 CFR part 30. For 

regulations pertaining to the authority, 

jurisdiction, and membership of the Board of 

Indian Appeals, Office of Hearings and 

Appeals, see subpart A of this part. For 

regulations generally applicable to 

proceedings before the Hearings Divisions 

and Appeal Boards of the Office of Hearings 

and Appeals, see subpart B of this part. 

16. In subpart D, remove 

undesignated center heading, 

‘‘Determination of Heirs and Approval 

of Wills, Except as to Members of the 

Five Civilized Tribes and Osage Indians; 

Tribal Purchases of Interests Under 

Special Statutes.’’

17. Revise §§ 4.200 and 4.201 to read 

as follows: 

§ 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 .............................................................. §§ 4.200 and 4.201. 

(2) Appeals to the Board of Indian Appeals generally ............................. §§ 4.310 through 4.318. 

(3) Appeals to the Board of Indian appeals from decisions of the Probate Hearings Division in Indian probate matters.§§ 4.320 through 4.326. 

(4) Appeals to the Board of Indian Appeals from actions or decisions of 

BIA.

§§ 4.330 through 4.340. 

(5) Determinations under the White Earth Reservation Land Settlement 

Act of 1985.

§§ 4.350 through 4.357. 

(b) Except as limited by the provisions 

of this part, the regulations in subparts 

A and B of this part apply to these 

proceedings. 

§ 4.201 Definitions. 

As used in this subpart: 

Administrative law judge (ALJ) means 

an administrative law judge with OHA 

appointed under the Administrative 

Procedure Act, 5 U.S.C. 3105. 

Agency means the Bureau of Indian 

Affairs (BIA) agency office, or any other 

designated office in BIA, having 

jurisdiction over trust or restricted land. 

This term also means any office of a 

tribe that has entered into a contract or 

compact to fulfill the probate function 

under 25 U.S.C. 450f or 458cc. 

BIA means the Bureau of Indian 

Affairs within the Department. 

Board means the Interior Board of 

Indian Appeals (IBIA) within OHA, 

authorized by the Secretary to hear, 

consider, and determine finally for the 

Department appeals taken by aggrieved 

parties from actions by OHA judges on 

petitions for rehearing or reopening, and 

allowance of attorney fees, and from 

actions of BIA officials as provided in 

§ 4.1(b)(2) of this subtitle. 

Day means a calendar day, unless 

otherwise stated. 

Decedent means a person who is 

deceased. 

Devise means a gift of property by 

will. Also, to give a gift of property by 

will. 

Devisee means a person or entity that 

receives property under a will. 

Estate means the trust or restricted 

land and trust personalty owned by the 

decedent at the time of death. 

Heir means any individual or entity 

eligible to receive trust or restricted land 

and trust personalty from a decedent in 

an intestate proceeding. 

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 §§ 4.202 through 4.308, 

along with their undesignated center 

headings. 

19. Revise § 4.320 to read as follows: 

§ 4.320 Who may appeal a judge’s order 

on petition for rehearing or reopening or 

regarding purchase of interests in a 

deceased Indian’s trust estate. 

Any interested party who is adversely 

affected has a right to appeal to the 

Board from an order of a judge on a 

petition for rehearing, a petition for 

reopening, or regarding purchase of 

interests in a deceased Indian’s trust 

estate under part 30 of this subtitle. 

20. Redesignate §§ 4.321 through 

4.323 as §§ 4.324 through 4.326 and add 

new §§ 4.321 through 4.323 to read as 

follows: 

§ 4.321 How to appeal a judge’s order on 

petition for rehearing or reopening or 

regarding purchase of interests in a 

deceased Indian’s trust estate. 

(a) Within 30 days after the date of the 

judge’s order, an appellant must file a 

written notice of appeal signed by the 

appellant, the appellant’s attorney, or 

other qualified representative as 

provided in § 1.3 of this subtitle, with 

the Board of Indian Appeals, Office of 

Hearings and Appeals, U.S. Department 

of the Interior, 801 North Quincy Street, 

Arlington, Virginia 22203. 

(b) A notice of appeal not timely filed 

must be dismissed for lack of 

jurisdiction. 


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§ 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. 

§ 4.323 Service of the notice of appeal. 

(a) The appellant must deliver or mail 

the original notice of appeal to the 

Board of Indian Appeals. 

(b) A copy must be served on the 

judge whose decision is being appealed 

as well as on all interested parties. 

(c) The notice of appeal filed with the 

Board must include a certification that 

service was made as required by this 

section. 

21. Revise redesignated §§ 4.234 

through 4.236 to read as follows: 

§ 4.324 Record on appeal. 

(a) Upon receiving a copy of the 

notice of appeal, the judge whose 

decision is being appealed must notify 

the agency concerned to return the 

duplicate record filed under subpart J of 

part 30 of this subtitle to the designated 

LTRO. 

(b) The LTRO must conform the 

duplicate record to the original. 

Thereafter, the duplicate record will be 

available for inspection either at the 

LTRO or at the agency. 

(c) If a transcript of the hearing was 

not prepared, the judge will have a 

transcript prepared and forwarded to 

the Board within 30 days after receiving 

a copy of the notice of appeal. 

(d) The LTRO must forward the 

original record on appeal to the Board 

by certified mail. 

(e) Any party may file an objection to 

the record as constituted by the LTRO. 

The party must file his or her objection 

with the Board within 15 days after 

receiving the notice of docketing under 

§ 4.325. 

§ 4.325 Docketing the appeal. 

The Board will docket the appeal 

upon receiving the administrative 

record from the LTRO and will provide 

notice of the docketing to all interested 

parties as shown by the record on 

appeal. The docketing notice will 

specify the time within which briefs 

may be filed and will cite the 

procedural regulations governing the 

appeal. 

§ 4.326 Disposition of the record. 

(a) After the Board makes a decision 

other than a remand, it must forward to 

the designated LTRO: 

(1) The record filed with the Board 

under § 4.324(d); and 

(2) All documents added during the 

appeal proceedings, including any 

transcripts prepared because of the 

appeal and the Board’s decision. 

(b) The LTRO must conform the 

duplicate record retained under 

§ 4.324(b) to the original sent under 

paragraph (a) of this section and forward 

the conformed record to the agency 

concerned. 

22. Add part 30 to read as follows: 

PART 30—INDIAN PROBATE 

HEARINGS PROCEDURES 

Subpart A—Scope of Part; Definitions 

Sec. 

30.100 How do I use this part? 

30.101 Will the Secretary probate all the 

land or assets in an estate? 

30.102 What terms do I need to know? 

Subpart B—Commencement of Probate 

Proceedings 

30.110 When does OHA commence a 

probate case? 

30.111 How does OHA commence a probate 

case? 

30.112 What must a probate file contain? 

30.113 What will OHA do if it receives an 

incomplete probate file? 

30.114 What notice of the probate case will 

OHA send me? 

30.115 Can I review the probate file? 

Subpart C—Judicial Authority and Duties 

30.120 What authority does the judge have 

in probate cases? 

30.121 May a judge appoint a master in a 

probate case? 

30.122 Is the judge required to accept the 

master’s recommended decision? 

30.123 Will the judge determine matters of 

status and nationality? 

30.124 Can a judge find a person to be dead 

by reason of unexplained absence? 

30.125 May a judge reopen a probate case 

to correct errors and omissions? 

30.126 What happens if property was 

omitted from the inventory of the estate? 

30.127 What happens if property was 

improperly included in the inventory of 

the estate? 

30.128 What happens if an error in BIA’s 

estate inventory is alleged during the 

probate proceeding? 

Subpart D—Recusal of a Judge or ADM 

30.130 When must a judge or attorney 

decision maker (ADM) recuse himself or 

herself from a probate case? 

30.131 Where may a judge or ADM seek 

guidance on recusal? 

30.132 May an interested party to a probate 

proceeding excuse a judge or ADM from 

hearing a case? 

30.133 May an interested party to a probate 

proceeding request that a judge or ADM 

recuse himself or herself? 

30.134 What must the judge or ADM 

consider when deciding whether to 

recuse himself or herself? 

30.135 What action will the judge or ADM 

take after deciding to recuse himself or 

herself? 

30.136 How will the case proceed after the 

judge or ADM’s recusal? 

30.137 Can I appeal the judge’s or ADM’s 

recusal decision? 

Subpart E—Claims 

30.140 When may I file a claim against the 

probate estate? 

30.141 How must I file a creditor claim 

against the probate estate? 

30.142 Will a judge authorize payment of a 

claim from the trust estate where the 

decedent’s non-trust estate may be 

available? 

30.143 Are there any categories of claims 

that may not be allowed? 

30.144 May the judge authorize payment of 

the costs of administering the estate? 

30.145 When can a judge reduce or 

disallow a claim? 

30.146 What property is subject to claims? 

30.147 What happens if there is not enough 

trust personalty to pay all the claims? 

30.148 Will interest or penalties charged 

against claims after the date of death be 

paid? 

Subpart F—Consolidation and Settlement 

Agreements 

30.150 If the interested parties agree to 

settle matters among themselves, what 

does a judge do? 

30.151 May the devisees or eligible heirs in 

a probate proceeding consolidate their 

interests? 

30.152 May the parties to a settlement 

agreement or consolidation agreement 

waive valuation of trust property? 

30.153 Is an order approving a 

consolidation agreement or settlement 

agreement a partition or sale transaction? 

Subpart G—Purchase at Probate 

30.160 What can be purchased at probate? 

30.161 Who can purchase at probate? 

30.162 Does property purchased at probate 

remain in trust or restricted status? 

30.163 Is consent required for a purchase at 

probate? 

30.164 What must I do to purchase at 

probate? 

30.165 Who will OHA notify of a request to 

purchase at probate? 

30.166 What will the notice of the request 

to purchase at probate include? 

30.167 How does OHA decide whether to 

grant a request to purchase at probate? 

30.168 What will the judge consider in 

determining the market value of an 

interest? 

30.169 If I do not agree with the appraised 

market value, what can I do? 

30.170 What may I do if I disagree with the 

judge’s determination to approve a 

purchase at probate? 

30.171 What happens when OHA grants a 

request to purchase at probate? 

30.172 When must the successful bidder 

pay for the interest purchased? 

30.173 What happens after the successful 

bidder submits payment? 

30.174 What happens if the successful 

bidder does not pay within 30 days? 


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Subpart H—Renunciation of Interest 

30.180 May I give up an inherited interest 

in trust or restricted property or trust 

personalty? 

30.181 How do I renounce an inherited 

interest? 

30.182 Who may receive a renounced 

interest in trust or restricted land? 

30.183 Who may receive a renounced 

interest of less than 5 percent in trust or 

restricted land? 

30.184 Who may receive a renounced 

interest in trust personalty? 

30.185 Can my designated recipient refuse 

to accept the interest? 

30.186 Are renunciations that predate the 

American Indian Probate Reform Act of 

2004 valid? 

30.187 May I revoke my renunciation? 

30.188 Does a renounced interest vest in the 

person who renounced it? 

Subpart I—Summary Probate Proceedings 

30.200 What is a summary probate 

proceeding? 

30.201 What does a notice of a summary 

probate proceeding contain? 

30.202 May I request that summary probate 

proceeding be replaced by a formal 

probate proceeding? 

30.203 What must a summary probate 

decision contain? 

30.204 How do I seek review of a summary 

probate proceeding? 

30.205 What happens after I file a request 

for de novo review? 

30.206 What happens if nobody files for de 

novo review? 

Subpart J—Formal Probate Proceedings 

Notice 

30.210 How will I receive notice of the 

formal probate proceeding? 

30.211 Will the notice be published in a 

newspaper? 

30.212 Can I waive notice of the hearing, 

the time limits, or form of notice? 

30.213 What notice to a tribe is required in 

a formal probate proceeding? 

30.214 What must a notice of hearing 

contain? 

Depositions, Discovery, and Prehearing 

Conference 

30.215 How can I obtain documentation 

related to the probate proceeding? 

30.216 How does an interested party obtain 

permission to take depositions? 

30.217 How is a deposition taken? 

30.218 How may the transcript of a 

deposition be used? 

30.219 Who pays for the costs of taking a 

deposition? 

30.220 How does an interested party obtain 

written interrogatories and admission of 

facts and documents? 

30.221 May the judge limit the time, place, 

and scope of discovery? 

30.222 What happens if a party fails to 

comply with discovery? 

30.223 What is a prehearing conference? 

Hearings 

30.224 Can a judge compel a witness to 

appear and testify at a hearing? 

30.225 Are probate hearings open to the 

public? 

30.226 Must testimony in a probate 

proceeding be under oath or affirmation? 

30.227 Is a record made of formal probate 

hearings? 

30.228 What evidence is admissible at a 

probate hearing? 

30.229 Is testimony required for self-proved 

wills, codicils, or revocations? 

30.230 What if approval of the self-proved 

will, codicil, or revocation is contested? 

30.231 Who pays witnesses’’ costs? 

30.232 May a judge schedule a 

supplemental hearing? 

30.233 What will the official record of the 

probate case contain? 

30.234 What will the judge do with the 

original record? 

30.235 What happens if a hearing transcript 

has not been prepared? 

Decisions in Formal Proceedings 

30.236 What will the judge’s decision in a 

formal probate proceeding contain? 

30.237 What notice of the decision will the 

judge provide? 

30.238 May I file a petition for rehearing if 

I disagree with the judge’s decision in 

the formal probate hearing? 

30.239 Does any distribution of the estate 

occur while a petition for rehearing is 

pending? 

30.240 How will the judge address a 

petition for rehearing? 

30.241 Can I submit another petition for 

rehearing? 

30.242 When does the judge’s decision on 

a petition for rehearing become final? 

30.243 Can a closed probate case be 

reopened? 

30.244 How will the judge address my 

petition for reopening? 

30.245 What happens if the judge reopens 

the case? 

30.246 When will the decision on 

reopening become final? 

Subpart K—Miscellaneous Provisions 

30.250 When does the anti-lapse provision 

apply? 

30.251 What happens if an heir or devisee 

knowingly participates in the willful and 

unlawful killing of the decedent? 

30.252 Can a judge allow fees for attorneys 

representing interested parties? 

30.253 How must minors or other legal 

incompetents be represented? 

30.254 What happens when a person dies 

without a valid will and has no heirs? 

Subpart L—Tribal Purchase of Interests 

under Special Statutes 

30.260 What land is subject to a tribal 

purchase option at probate? 

30.261 What determinations with regard to 

a tribal purchase option will a judge 

make? 

30.262 When will BIA furnish a valuation 

of a decedent’s interests? 

30.263 When is a final decision issued? 

30.264 When may a tribe exercise its 

statutory option to purchase? 

30.265 How does a tribe exercise its 

statutory option to purchase? 

30.266 May a surviving spouse reserve a life 

estate when a tribe exercises its statutory 

option to purchase? 

30.267 What if I disagree with the probate 

decision regarding tribal purchase 

option? 

30.268 May I demand a hearing regarding 

the tribal purchase option decision? 

30.269 What notice of the hearing will the 

judge provide? 

30.270 How will the hearing be conducted? 

30.271 How must the tribe pay for the 

interests it purchases? 

30.272 What are the Superintendent’s 

duties upon payment by the tribe? 

30.273 What action will the judge take to 

record title? 

30.274 What happens to income from land 

interests during pendency of the 

probate? 

Authority: 5 U.S.C. 301; 25 U.S.C. 9, 372–

374, 410, 2201 et seq.; 43 U.S.C. 1201, 1457. 

Cross-reference: For regulations pertaining 

to the processing of Indian probate matters 

within the Bureau of Indian Affairs, see 25 

CFR part 15. For regulations pertaining to the 

appeal of decisions of the Probate Hearings 

Division, Office of Hearings and Appeals, to 

the Board of Indian Appeals, Office of 

Hearings and Appeals, see 43 CFR part 4, 

subpart D. For regulations generally 

applicable to proceedings before the Hearings 

Divisions and Appeal Boards of the Office of 

Hearings and Appeals, see 43 CFR part 4, 

subpart B. 

Subpart A—Scope of Part; Definitions 

§ 30.100 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 ................................................................... § § 30.100 through 30.102 

(2) Claims against probate estate ............................................................ §§ 30.140 through 30.148. 

(3) Commencement of probate ................................................................ §§ 30.110 through 30.115. 

(4) Consolidation of interests ................................................................... §§ 30.150 through 30.153. 

(5) Formal probate proceedings before an administrative law judge or 

Indian probate judge.

§§ 30.210 through 30.246. 

(6) Probate of trust estates of Indians who die possessed of trust property.All sections except §§ 30.260 through 30.274. 


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For provisions relating to . . . Consult . . . 

(7) Purchases at probate .......................................................................... §§ 30.160 through 30.177. 

(8) Renunciation of interests .................................................................... §§ 30.180 through 30.191. 

(9) Summary probate proceedings before an attorney decision maker .. §§ 30.200 through 30.206. 

(10) Tribal purchase of certain property interests of decedents under 

special laws applicable to particular tribes.

§§ 30.260 through 30.274. 

(b) Except as limited by the provisions 

of this part, the regulations in part 4, 

subparts A and B of this subtitle apply 

to these proceedings. 

§ 30.101 Will the Secretary probate all the 

land or assets in an estate? 

(a) We will probate only the trust or 

restricted land or trust personalty in an 

estate. 

(b) We will not probate the following 

property: 

(1) Real or personal property other 

than trust or restricted land or trust 

personalty in an estate of a decedent; 

(2) Restricted land derived from 

allotments in the estates of members of 

the Five Civilized Tribes (Cherokee, 

Choctaw, Chickasaw, Creek and 

Seminole) in Oklahoma; and 

(3) Restricted interests derived from 

allotments made to Osage Indians in 

Oklahoma (Osage Nation) and Osage 

headright interests owned by Osage 

decedents. 

(c) We will probate that part of the 

estate of a deceased member of the Five 

Civilized Tribes or Osage Nation who 

owned a trust interest in land or a 

restricted interest in land derived from 

an individual Indian other than a 

member of the Five Civilized Tribes or 

Osage Nation. 

(d) Except as limited by the 

provisions in this part, the rules in 

subparts A and B of part 4 of this 

subtitle apply to all proceedings covered 

by this part. 

§ 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 

§ 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 


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(3) With respect to the inheritance 

and ownership of trust or restricted land 

in the State of California under 25 

U.S.C. 2206, any person described in 

paragraph (1) or (2) of this definition or 

any person who owns a trust or 

restricted interest in a parcel of land in 

that State. 

Indian probate judge (IPJ) means a 

licensed attorney employed by OHA, 

other than an ALJ, to whom the 

Secretary has delegated authority to 

hear and decide Indian probate cases 

under 5 U.S.C. 556(b). 

Interested party means any of the 

following: 

(1) Any potential or actual heir; 

(2) Any devisee under a will; 

(3) Any person or entity asserting a 

claim against a deceased Indian’s estate; 

(4) Any tribe having a statutory option 

to purchase the trust or restricted 

property interest of a decedent; or 

(5) Any co-owner exercising a 

purchase option. 

Intestate means the decedent died 

without a valid will. 

Judge means an ALJ or IPJ. 

LTRO means the Land Titles and 

Records Office within BIA. 

Minor means an individual who has 

not reached the age of majority as 

defined by the applicable law. 

OHA means the Office of Hearings 

and Appeals within the Department. 

OST means the Office of the Special 

Trustee for American Indians within the 

Department. 

Per stirpes means by right of 

representation, dividing an estate into 

equal shares based on the number of 

decedent’s surviving children and 

predeceased children who left issue and 

who survive the decedent. The share of 

a predeceased child of the decedent is 

divided equally among the predeceased 

child’s surviving children. 

Probate means the legal process by 

which applicable tribal, Federal, or 

State law that affects the distribution of 

a decedent’s estate is applied to: 

(1) Determine the heirs; 

(2) Determine the validity of wills and 

determine devisees; 

(3) Determine whether claims against 

the estate will be paid from trust funds; 

and 

(4) Order the transfer of any trust or 

restricted land or trust personalty to the 

heirs, devisees, or other persons or 

entities entitled by law to receive the 

funds or land. 

Probate staff means a DOI or tribal 

employee who is trained in Indian 

probate matters and who is responsible 

for preparing the probate file. 

Purchase option at probate refers to 

the process by which eligible purchasers 

can purchase a decedent’s interest 

during the probate proceeding. 

Restricted property means real 

property, the title to which is held by an 

Indian but which cannot be alienated or 

encumbered without the consent of the 

Secretary. For the purposes of probate 

proceedings, restricted property is 

treated as if it were trust property. 

Except as the law may provide 

otherwise, the term ‘‘restricted 

property’’ as used in this part does not 

include the restricted lands of the Five 

Civilized Tribes of Oklahoma or the 

Osage Nation. 

Secretary means the Secretary of the 

Interior or an authorized representative. 

The authorized representative of the 

Secretary for the performance of probate 

functions is BIA. The authorized 

representative of the Secretary for 

adjudication of probate is OHA. 

Summary probate proceeding means 

the consideration of a probate file 

without a hearing and on the basis of 

the probate file received from the BIA. 

A summary probate proceeding may be 

conducted if the estate involves only 

trust personalty and does not exceed the 

amount of $5,000 on the date of the 

death of the decedent. 

Superintendent means a BIA 

Superintendent or other BIA official, 

including a field representative or one 

holding equivalent authority. 

Testate means that the decedent 

executed a valid will. 

Testator means a person who has 

executed a valid will. 

Trust personalty means all funds and 

securities of any kind that are held in 

trust in an IIM account or otherwise 

supervised by the Secretary. 

Trust property means real or personal 

property, or an interest therein, for 

which the United States holds the title 

to the property in trust for the benefit of 

an individual Indian or tribe. 

We means the Secretary of the Interior 

or an authorized representative as 

defined in this section. 

Will means a written document 

executed with the required formalities 

and intended to pass the testator’s 

property upon death. 

You means, in regulatory text, an heir 

or devisee or owner of trust or restricted 

land or trust personalty, unless a 

specific section defines ‘‘you’’ to have 

another meaning. 

Subpart B—Commencement of 

Probate Proceedings 

§ 30.110 When does OHA commence a 

probate case? 

OHA commences probate of a trust 

estate when OHA receives a probate file 

from BIA. 

§ 30.111 How does OHA commence a 

probate case? 

OHA commences a probate case by 

confirming the case number assigned by 

BIA, assigning the case to a judge or 

ADM, and designating the case as a 

summary probate proceeding or formal 

probate proceeding. 

§ 30.112 What must a probate file contain? 

A probate file must contain the 

documents and information described 

in 25 CFR 15.302 and any other relevant 

information. 

§ 30.113 What will OHA do if it receives an 

incomplete probate file? 

If OHA determines that the probate 

file it received from BIA is not complete 

and the probate file is not accompanied 

by the certification described in 25 CFR 

15.303, OHA may: 

(a) Request the missing information 

from BIA; 

(b) Dismiss the case and return the 

probate file to BIA for further 

processing; 

(c) Issue a subpoena or request for 

production as appropriate to obtain the 

missing information; or 

(d) Proceed with a hearing in the case. 

§ 30.114 What notice of the probate case 

will OHA send me? 

OHA will send a notice of hearing to 

potential heirs, devisees, and creditors if 

the case is designated as a formal 

probate proceeding. In a case designated 

as a summary probate proceeding, OHA 

will send potential heirs and devisees a 

notice of the designation. OHA also will 

inform potential heirs and devisees that 

a formal probate proceeding may be 

requested instead of the summary 

process. 

§ 30.115 Can I review the probate file? 

After OHA receives the case, any 

interested party may examine the 

probate file during regular business 

hours and make copies upon payment of 

the reasonable cost of copying. 

Subpart C—Judicial Authority and 

Duties 

§ 30.120 What authority does the judge 

have in probate cases? 

A judge has the general authority to: 

(a) Determine the manner, location, 

and time of hearings conducted under 

this part, and otherwise to administer 

the cases assigned to the judge; 

(b) Determine the heirs of any Indian 

or eligible heir who dies intestate 

possessed of trust or restricted property; 

(c) Approve or disapprove a will 

disposing of trust or restricted property; 

(d) Accept or reject any full or partial 

renunciation of interest in both testate 

and intestate proceedings; 


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(e) Approve or disapprove any 

consolidation agreement; 

(f) Conduct sales at probate and 

provide for the distribution of interests 

in the probate decision and order; 

(g) Allow or disallow claims by 

creditors; 

(h) Order the distribution of trust 

property to heirs and devisees and 

determine and reserve the share or 

shares that any potential heir or devisee 

who is missing but not found to be 

deceased by a court of competent 

jurisdiction is entitled; 

(i) Determine whether a tribe has 

jurisdiction over the trust or restricted 

property and, if the tribe has 

jurisdiction, the right of the tribe to take 

a decedent’s trust or restricted property 

under 25 U.S.C. 2206(a)(2)(B)(v), 

2206(a)(2)(D)(iii)(V), or other applicable 

laws; 

(j) Issue subpoenas for the appearance 

of persons, the testimony of witnesses, 

and the production of documents at 

hearings or depositions, under 25 U.S.C. 

374, upon the judge’s initiative or, 

within the judge’s discretion, upon the 

request of an interested party; 

(k) Administer oaths and affirmations; 

(l) Order the taking of depositions and 

determine the scope and use of 

deposition testimony; 

(m) Order the production of 

documents and records and determine 

the scope and use of the documents and 

records; 

(n) Rule on matters involving 

interrogatories and any other requests 

for discovery, including admissions; 

(o) Grant or deny stays, waivers, and 

extensions; 

(p) Hear, consider, and rule on 

motions, requests, and objections; 

(q) Rule on the admissibility of 

evidence; 

(r) Permit the cross examination of 

witnesses; 

(s) Appoint a guardian ad litem for 

any interested party who is a minor or 

found by the judge to be not competent 

to represent his or her own interests; 

(t) Inquire of persons and agencies in 

order to complete the record in probate 

proceedings and to protect the integrity 

of the record; 

(u) Hear and consider the claims of 

creditors against the estate, allowing or 

dismissing claims based on the evidence 

and the law; 

(v) Provide information to interested 

parties about the right to appeal and 

concerning consolidation agreements, 

renunciations of interest, and purchases 

at probate as necessary; 

(w) Administer the probate case and 

regulate the course of any hearing and 

the conduct of witnesses, interested 

parties, attorneys, and attendees at a 

hearing; 

(x) Determine and impose sanctions 

and penalties allowed by law; and 

(y) Take such action as necessary to 

preserve the trust assets of an estate. 

§ 30.121 May a judge appoint a master in 

a probate case? 

(a) In the exercise of any authority 

under this part, a judge may appoint a 

master: 

(1) To conduct hearings on the record 

and hear evidence as to all or specific 

issues in probate cases as assigned by 

the judge; 

(2) To make written reports including 

findings of fact and conclusions of law; 

and 

(3) To propose recommended 

decisions to the judge. 

(b) Upon filing, the master’s report 

and recommended decision will be 

mailed or delivered to the interested 

parties. 

§ 30.122 Is the judge required to accept 

the master’s recommended decision? 

No, the judge is not required to accept 

the master’s recommended decision. 

(a) An interested party adversely 

affected by the report and recommended 

decision may file objections within 30 

days of the mailing or delivery of the 

report. An objecting party must 

simultaneously mail or deliver copies of 

the objections to all other interested 

parties. 

(b) Any other interested party may file 

responses to the objections within 15 

days of the mailing or delivery of the 

objections. A responding party must 

simultaneously mail or deliver a copy of 

his or her responses to the objecting 

party. 

(c) The judge will review the record 

of the proceedings heard by the master, 

including any objections and responses 

filed, and determine whether the 

master’s report and recommended 

decision is supported by the evidence of 

record. 

(1) If the judge approves the report 

and finds that the recommended 

decision is supported by the evidence of 

record and is consistent with applicable 

law, the judge will enter an order 

adopting the recommended decision. 

(2) If the judge does not approve the 

report or finds that the recommended 

decision is not supported by the 

evidence of record, the judge may 

remand the case to the master for further 

proceedings consistent with instructions 

in the remand order, or the judge may 

hear the case de novo and enter a 

decision. 

(3) If the judge finds that the master’s 

findings of fact are supported by the 

evidence in the record but the 

conclusions of law or the recommended 

decision is not consistent with 

applicable law, the judge will issue an 

order adopting the findings of fact, 

making conclusions of law, and entering 

a decision. 

§ 30.123 Will the judge determine matters 

of status and nationality? 

(a) The judge in a probate proceeding 

will determine: 

(1) The status of eligible heirs or 

devisees as Indians; 

(2) The nationality or citizenship of 

eligible heirs or devisees; and 

(3) Whether any of the Indian heirs or 

devisees with U.S. citizenship are 

individuals for whom the supervision 

and trusteeship of the United States is 

terminated. 

(b) A judge may make determinations 

under this section in a current probate 

proceeding or in a completed probate 

case after a reopening without regard to 

a time limit. 

§ 30.124 Can a judge find a person to be 

dead by reason of unexplained absence? 

(a) A judge may make a finding that 

an heir, devisee, or a person for whom 

a probate case has been opened is dead, 

by reason of extended unexplained 

absence, and include the date of death 

in the finding. The judge will make a 

finding of death only upon clear and 

convincing evidence. 

(b) In any proceeding to determine 

whether a person is dead, the following 

rebuttable presumptions apply: 

(1) If credible evidence establishes 

that the absent person has had contact 

with any person or entity during the 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. 

§ 30.125 May a judge reopen a probate 

case to correct errors and omissions? 

(a) Upon the written request of an 

interested party, or on the judge’s own 

motion, at any time, a judge has the 

specific authority to reopen a probate 

case to: 

(1) Determine the correct identity of 

the original allottee, or any heir or 

devisee; 

(2) Determine whether different 

persons received the same allotment; 

(3) Decide whether trust patents 

covering allotments of land were issued 

incorrectly or to a non-existent person; 

(4) Determine whether more than one 

allotment of land had been issued to the 


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same person under different names and 

numbers or through other errors in 

identification; or 

(5) Address any other error deemed by 

the judge sufficient to order the case to 

be reopened. 

(b) The judge will notify interested 

parties if a probate case is reopened and 

will refer the case for proceedings in 

accordance with this part. 

§ 30.126 What happens if property was 

omitted from the inventory of the estate? 

(a) This section applies when, after 

issuance of a decision and order in a 

formal probate proceeding, it is found 

that trust or restricted property or 

interest therein belonging to a decedent 

has not been included in the inventory. 

(1) The inventory can be modified to 

include the omitted property for 

distribution under the original decision. 

(2) Modification to include the 

omitted property in the decedent’s 

inventory may be made either 

administratively by BIA or by a 

modification order by a judge. 

(3) Copies of all modifications must 

be furnished to the agency and to all 

those persons who share in the estate. 

(b) When the property to be included 

takes a different line of descent from 

that shown in the original decision, BIA 

must notify the judge. The judge will: 

(1) Conduct a hearing, if necessary, 

and issue a decision; and 

(2) File a record of the proceeding 

with the designated LTRO. 

§ 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. 

§ 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 

§ 30.130 When must a judge or attorney 

decision maker (ADM) recuse himself or 

herself from a probate case? 

A judge or attorney decision maker 

(ADM) must recuse himself or herself 

from a probate case in which the judge 

or ADM determines: 

(a) That the judge or ADM has a 

conflict of interest; or 

(b) That the judge’s or ADM’s 

impartiality may reasonably be 

questioned under recognized canons of 

judicial ethics. 

§ 30.131 Where may a judge or ADM seek 

guidance on recusal? 

A judge or ADM may consult and seek 

guidance for the determinations listed 

in § 30.130 from: 

(a) The code of judicial conduct for 

any State in which the judge or ADM is 

a member of the bar; or 

(b) The code of judicial conduct for 

the Federal courts. 

§ 30.132 May an interested party to a 

probate proceeding excuse a judge or ADM 

from hearing a case? 

No. No party to a probate proceeding 

may excuse a judge or ADM from 

hearing a case. 

§ 30.133 May an interested party to a 

probate proceeding request that a judge or 

ADM recuse himself or herself? 

Yes. If you are an interested party to 

a probate proceeding, you may request 

that a judge or ADM recuse himself or 

herself by filing a written motion for 

recusal. 

(a) The motion for consideration of 

recusal must state, by affidavit or 

verified motion, the facts and 

circumstances that you ask the judge or 

ADM to consider. 

(b) You must file a motion for recusal 

before the judge or ADM files the 

decision and order in a probate 

proceeding. 

(c) A motion for recusal may not delay 

proceedings unless you also request, 

and the judge or ADM grants, an 

extension of time for the hearing of the 

motion. 

§ 30.134 What must the judge or ADM 

consider when deciding whether to recuse 

himself or herself? 

The grounds for which a judge or 

ADM must consider recusal include, 

without limitation: 


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(a) Personal bias or prejudice 

concerning an interested party or an 

interested party’s attorney; 

(b) Personal knowledge of disputed 

evidentiary facts obtained before the 

filing of the probate case or obtained ex 

parte during the pendency of the 

probate proceeding; 

(c) Prior service as an attorney 

concerning a matter or for an interested 

party in the current probate proceeding; 

(d) Service as a witness, conservator, 

guardian, or guardian ad litem in a case 

involving an interested party; and 

(e) Economic interest in the outcome 

of the case by the judge or ADM, the 

spouse of the judge or ADM, or a person 

within the third degree of relationship 

to the judge or ADM or the judge’s or 

ADM’s spouse. 

§ 30.135 What action will the judge or ADM 

take after deciding to recuse himself or 

herself? 

If the judge or ADM decides to recuse 

himself or herself, the judge or ADM 

must immediately file a certificate of 

recusal in the file of the affected case 

and notify the Chief ALJ, all interested 

parties, any counsel in the case, and the 

affected BIA agencies. The judge or 

ADM is not required to state the reason 

for recusal. 

§ 30.136 How will the case proceed after 

the judge or ADM’s recusal? 

Within 30 days of the filing of the 

certificate of recusal, the Chief ALJ will 

appoint another judge or ADM to hear 

the case, and will notify the parties 

identified in § 30.135 of the 

appointment. 

§ 30.137 Can I appeal the judge’s or ADM’s 

recusal decision? 

If you have filed a motion seeking 

recusal of a judge or ADM under 

§ 30.133 and the judge or ADM denies 

the motion, you may seek immediate 

review of the denial by filing a request 

with the Chief ALJ under § 4.27(c)(3) of 

this subtitle. 

Subpart E—Claims 

§ 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. 

§ 30.141 How must I file a creditor claim 

against the probate estate? 

(a) A creditor must submit an affidavit 

under oath setting forth the debt alleged 

and an itemized statement of the debt, 

including copies of any documents 

necessary to prove the indebtedness, 

such as signed contracts, signed notes, 

mortgages, account records, billing 

records, and journal entries. 

(b) The creditor’s affidavit also must 

state whether: 

(1) Parties other than the decedent are 

responsible for any portion of the debt 

alleged; 

(2) Any known or claimed offsets to 

the alleged debt exist; and 

(3) The creditor or anyone on behalf 

of the creditor has filed a claim or 

sought reimbursement against the 

decedent’s non-trust or restricted 

property in any other judicial or quasijudicial proceeding. 

(c) The itemized statement must 

include: 

(1) The date and amount of the 

original debt; 

(2) The dates, amounts, and identity 

of the payor for any payments made; 

(3) The dates, amounts, product or 

service, and identity of any person 

making charges on the account; 

(4) The balance remaining on the debt 

on the date of the decedent’s death; and 

(5) Any notification by the decedent 

that the amount claimed was disputed 

by the decedent. 

§ 30.142 Will a judge authorize payment of 

a claim from the trust estate where the 

decedent’s non-trust estate may be 

available? 

No claim will be paid from trust or 

restricted property if the judge 

determines that the decedent’s non-trust 

estate may be available to pay the claim. 

§ 30.143 Are there any categories of 

claims that may not be allowed? 

(a) Claims for care may not be allowed 

except upon clear and convincing 

evidence that the care was given on a 

promise of compensation and that 

compensation was expected. 

(b) A claim cannot be allowed if it is: 

(1) Based on a written or oral contract, 

express or implied; and 

(2) The claim has existed for such a 

period as to be barred by the applicable 

tribal or state laws at date of decedent’s 

death. 

(c) Claims sounding in tort not 

reduced to judgment in a court of 

competent jurisdiction, and other 

unliquidated claims not properly within 

the jurisdiction of OHA, are barred. 

(d) Claims of a State or any of its 

political subdivisions, are barred if they 

relate to: 

(1) Payments for general assistance, 

welfare or similar assistance; 

(2) Social security; or 

(3) Claims for old-age assistance. 

§ 30.144 May the judge authorize payment 

of the costs of administering the estate? 

Upon motion of the superintendent or 

an interested party, the judge may 

authorize payment of the costs of 

administering the estate as they arise 

and before the allowance of any claims 

against the estate. 

§ 30.145 When can a judge reduce or 

disallow a claim? 

The judge has discretion to decide 

that part or all of an otherwise valid 

claim is unreasonable, reduce the claim 

to a reasonable amount, or disallow the 

claim in its entirety. If a claim is 

reduced, the judge will order payment 

only of the reduced amount. 

§ 30.146 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. 

§ 30.147 What happens if there is not 

enough trust personalty to pay all the 

claims? 

If, at the date of death, there is not 

enough trust personalty to pay all 

claims, the claims may be ordered paid 

on a pro rata basis or disallowed in their 

entirety. The unpaid balance of any 

claims will not be enforceable against 

the estate after the estate is closed. 

§ 30.148 Will interest or penalties charged 

against claims after the date of death be 

paid? 

Interest or penalties charged after the 

date of death will not be paid. 

Subpart F—Consolidation and 

Settlement Agreements 

§ 30.150 If the interested parties agree to 

settle matters among themselves, what 

does a judge do? 

(a) A judge may approve a settlement 

agreement among interested parties 

resolving any issue in the probate 

proceeding if the judge finds that: 

(1) All parties to the agreement are 

advised as to all material facts; 


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(2) All parties to the agreement 

understand the effect of the agreement 

on their rights; and 

(3) It is in the best interest of the 

parties to settle. 

(b) In considering the proposed 

settlement agreement, the judge may 

consider evidence of the respective 

values of specific items of property and 

all encumbrances. 

(c) If the judge approves the 

settlement agreement under paragraph 

(a) of this section, the judge will issue 

an order approving the settlement 

agreement and distributing the estate in 

accordance with the agreement. 

§ 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. 

§ 30.152 May the parties to a settlement 

agreement or consolidation agreement 

waive valuation of trust property? 

The parties to a settlement agreement 

or to a consolidation agreement may 

waive valuation of trust property 

otherwise specified by regulation or the 

Secretary’s rules and requirements. If 

the parties waive valuation, the waiver 

must be included in the written 

agreement. 

§ 30.153 Is an order approving a 

consolidation agreement or settlement 

agreement considered a partition or sale 

transaction? 

An order issued by a judge approving 

a consolidation or settlement agreement 

will not be interpreted as a partition or 

sale transaction within the provisions of 

25 CFR part 152. 

Subpart G—Purchase at Probate 

§ 30.160 What can be purchased at 

probate? 

An eligible purchaser may purchase, 

during the probate of a trust or restricted 

estate, all or part of the estate of a 

person who died after June 20, 2006. 

(a) Any interest in trust or restricted 

property, including a life estate that is 

part of the estate, may be purchased at 

probate with the following exceptions: 

(1) If an interest is included in an 

approved consolidation agreement, that 

interest may not be purchased at probate 

without consent of the owner; and 

(2) An interest that a devisee will 

receive under a valid will cannot be 

purchased without the consent of the 

devisee. 

(b) A purchase option must be 

exercised before an order is entered and 

be included as part of the order in the 

estate. 

§ 30.161 Who can purchase at probate? 

An eligible purchaser is: 

(a) Any devisee or eligible heir who 

is taking an interest in the same parcel 

of land in the probate proceeding; 

(b) Any person who owns an 

undivided trust or restricted interest in 

the same parcel of land; 

(c) The Indian tribe with jurisdiction 

over the parcel containing the interest; 

or 

(d) The Secretary on behalf of the 

tribe. 

§ 30.162 Does property purchased at 

probate remain in trust or restricted status? 

The property interests purchased at 

probate must remain in trust or 

restricted status. 

§ 30.163 Is consent required for a 

purchase at probate? 

(a) The heir’s consent is not required 

if: 

(1) The interest the heir will receive 

in the parcel, subject to the probate 

proceeding, is less than 5 percent of the 

entire undivided ownership interest in 

the parcel; and 

(2) The heir was not residing on the 

parcel on the date of the decedent’s 

death. 

(b) The heir’s consent is required if: 

(1) The interest the heir will receive 

in the parcel, subject to the probate 

proceeding, is 5 percent or more of the 

entire undivided ownership interest in 

the parcel; or 

(2) The interest the heir will receive 

is less than 5 percent of the entire 

undivided ownership interest in the 

parcel and the heir was residing on the 

parcel on the date of the decedent’s 

death. 

§ 30.164 What must I do to purchase at 

probate? 

Any eligible purchaser must submit a 

written request to OHA to purchase at 

probate before the decision and order 

issues. 

§ 30.165 Who will OHA notify of a request 

to purchase at probate? 

OHA will provide notice of a request 

to purchase at probate to: 

(a) The heirs or devisees and the 

Indian tribe with jurisdiction over the 

interest, by first class mail; 

(b) The BIA agency with jurisdiction 

over the interest, by first class mail; 

(c) All parties who have submitted a 

written request for purchase, by first 

class mail; and 

(d) All other eligible purchasers, by 

posting written notice in at least five 

conspicuous places in the vicinity of the 

place of hearing and one conspicuous 

place at the agency with jurisdiction 

over the parcel. 

§ 30.166 What will the notice of the request 

to purchase at probate include? 

The notice posted by OHA will 

include: 

(a) The manner of sale; 

(b) The date, time, and place of the 

sale; 

(c) A description of the interest to be 

sold; and 

(d) The appraised market value of the 

parcel obtained from BIA with the 

probate file containing the interest to be 

sold and an estimate of the market value 

allocated to the interest being sold. 


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§ 30.167 How does OHA decide whether to 

grant a request to purchase at probate? 

OHA will sell the interest to the 

eligible purchaser submitting the 

highest bid at not less than the market 

value of the interest. 

§ 30.168 What will the judge consider in 

determining the market value of an 

interest? 

(a) An appraisal of the market value 

of the interest to be sold at probate must 

be based upon an appraisal which gives 

appropriate consideration to the 

fractionated ownership interest in the 

parcel. The appraisal must meet the 

standards in the Uniform Standards for 

Professional Appraisal Practice 

(USPAP). 

(b) The judge will use the appraised 

market value of the interest being sold 

and determine the allocation of 

proceeds of sale among the heirs based 

upon the fractional ownership interests 

in the parcel. 

(c) In allocating the proceeds of the 

sale of an interest subject to a life estate, 

the allocation among the holder of the 

life estate and the holders of any 

remainder interests, the judge must use 

the ratios in 25 CFR part 179. 

(d) The judge will order the 

distribution of the sale proceeds in 

accordance with the determination 

made in paragraph (b) of this section. 

§ 30.169 If I do not agree with the 

appraised market value, what can I do? 

(a) If you are a potential purchaser or 

the heir whose interest is to be sold and 

you disagree with the appraised market 

value, you may: 

(1) File a written objection with OHA 

within 30 days from the mailing of 

notice provided under § 30.167, stating 

the reasons for the objection; and 

(2) Within 15 days after filing a 

written objection, submit any 

supporting documentation showing why 

the market value should be modified. 

(b) The judge will consider any 

objections, make a determination of the 

market value and whether to approve 

the purchase under § 30.169, and notify 

all interested parties. 

§ 30.170 What may I do if I disagree with 

the judge’s determination to approve a 

purchase at probate? 

(a) If you are an interested party 

adversely affected by the judge’s 

determination under § 30.171(b), you 

may file a written objection with the 

judge within 15 days after the mailing 

of the determination under § 30.171(b). 

(1) The written objection must state 

the reasons for the objection and request 

interlocutory appeal of the 

determination to the Board. 

(2) You must furnish a copy of the 

written objection to the other interested 

parties and the agencies, stating that you 

have done so in your written objection. (b) If the objection is timely filed, the 

judge must forward a certified copy of 

the complete record in the case to the 

Board for review of the determination. 

The judge will not issue the decision in 

the probate case until the Board has 

issued its decision on interlocutory 

review of the determination. 

(c) If the objection is not timely filed, 

the judge will issue an order denying 

the request for review as untimely and 

will furnish copies of the order to the 

interested parties and the agencies. If 

you disagree with the decision of the 

judge as to whether your objection was 

timely filed, you may file a petition for 

rehearing under § 30.238 after the judge 

issues a decision under § 30.236. 

§ 30.171 What happens when OHA grants 

a request to purchase at probate? 

When OHA grants a request to 

purchase at probate, it will: (a) Notify the successful bidder by 

first class mail; and 

(b) Notify OST, the agency that 

prepared the probate file, and the 

agency having jurisdiction over the 

interest sold, including the following 

information: 

(1) The estate involved; 

(2) The parcel and interest sold; 

(3) The identity of the successful 

bidder; and 

(4) The amount of the bid. 

§ 30.172 When must the successful bidder 

pay for the interest purchased? 

The successful bidder must pay to 

OST, by cashier’s check or money order 

via the lockbox, or electronic funds 

transfer, the full amount of the purchase 

price within 30 days from the mailing 

of the notice of successful bid. 

§ 30.173 What happens after the 

successful bidder submits payment? 

(a) When OST receives payment, it 

will notify OHA, and the judge enters an 

order approving the sale and directing 

the LTRO to record the transfer of title 

to the interest of the successful bidder. 

The order will state the date of the title 

transfer, which is the date payment is 

received. 

(b) OST will: 

(1) Deposit the payment in the 

decedent’s estate account; and 

(2) Distribute the money from the sale 

to the heir, devisee, or spouse whose 

interest was sold, in accordance with 

each respective interest. 

§ 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 

§ 30.180 May I give up an inherited interest 

in trust or restricted property or trust 

personalty? 

If you are 18 years old and not under 

a legal disability, you may renounce an 

inherited interest in trust or restricted 

property, including a life estate, or in 

trust personalty. 

§ 30.181 How do I renounce an inherited 

interest? 

You can renounce an inherited 

interest in trust personalty or restricted 

property, including an inherited life 

estate. To do this, you must file with the 

judge, before the filing of the final order 

in the probate case, a signed and 

acknowledged declaration specifying 

the interest renounced 

(a) You may retain a life estate in 

specific interests in trust or restricted 

land and renounce the remainder 

interests by filing the written 

declaration with the judge. 

(b) If you renounce an interest in trust 

or restricted land under 25 U.S.C. 2206, 

you may either: 

(1) Designate an eligible person or 

entity meeting the requirements of 

§ 30.184 as the recipient; or 

(2) Renounce without making a 

designation. 

(c) If you choose to renounce your 

interests in favor of a designated 

recipient, the judge must notify the 

designated recipient. 

§ 30.182 Who may receive a renounced 

interest in trust or restricted land? 

If the interest renounced is an interest 

in land, a person may renounce only in 

favor of: 

(a) An eligible heir of the testator; 

(b) A person eligible to be a devisee 

of the interest, if the renouncing person 

is a devisee of the interest under a valid 

will, and is: 

(1) A lineal descendant of the testator; 

(2) A person who owns a preexisting 

undivided trust or restricted interest in 

the same parcel; 

(3) Any Indian; or 

(4) The tribe with jurisdiction over the 

interest. 

§ 30.183 Who may receive a renounced 

interest of less than 5 percent in trust or 

restricted land ? 

An interest in trust or restricted land 

that is not disposed of by a valid will 

and that represents less than 5 percent 

of the entire undivided ownership of a 


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parcel of land may be renounced in 

favor of a single heir. The single heir 

may renounce only in favor of the 

Indian tribe with jurisdiction over the 

interest or one person who is: 

(a) Another eligible heir; 

(b) An Indian related to the heir by 

blood; or 

(c) A co-owner of another trust or 

restricted interest in the same parcel. 

§ 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 

§ 30.185. 

§ 30.185 Can my designated recipient 

refuse to accept the interest? 

Yes. The recipient may refuse to 

accept the interest. The refusal must be 

made in writing and filed before the 

judge. If the designated recipient of the 

renounced interest refuses to accept that 

interest, then the renounced interest 

passes to the heirs of the decedent as if 

the person renouncing the interest had 

predeceased the decedent. 

§ 30.186 Are renunciations that predate 

the American Indian Probate Reform Act of 

2004 valid? 

Any renunciation filed and 

implemented in a probate order issued 

before the effective date of the American 

Indian Probate Reform Act of 2004 is 

ratified. 

§ 30.187 May I revoke my renunciation? 

No. A written renunciation is 

irrevocable after the judge accepts the 

renunciation and enters the final order 

in the probate proceeding. 

§ 30.188 Does a renounced interest vest in 

the person who renounced it? 

No. An interest in trust or restricted 

property renounced under § 30.181 is 

not considered to have vested in the 

renouncing heir or devisee, and the 

renunciation is not considered a transfer 

by gift of the property renounced to the 

renouncing person. 

(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 

§ 30.200 What is a summary probate 

proceeding? 

(a) A summary probate proceeding is 

the consideration of a probate case 

without a formal hearing on the basis of 

the probate file received from BIA. A 

summary probate proceeding may be 

conducted by a judge, an ADM, or a 

master, as determined by the 

supervising judge. 

(b) A decedent’s estate may be 

processed summarily if the estate 

involves only cash and the total value 

of the estate does not exceed $5,000 on 

the date of death. 

§ 30.201 What does a notice of a summary 

probate proceeding contain? 

The notice of summary probate 

proceeding will contain the following: 

(a) Notice of the right of any 

interested party to request treatment of 

the probate case as a formal probate 

proceeding; 

(b) A copy of the OHA–7, a statement 

of the IIM account balance, and a copy 

of the death certificate, except to a 

creditor who is not an eligible heir; 

(c) A notice that the only claim of a 

creditor that will be considered is that 

of a person defined as an eligible heir 

under these regulations, or of any 

person or entity who filed as a creditor 

with the BIA before the transfer of the 

probate file to OHA, with a copy of the 

claim; 

(d) A notice that an interested party 

may renounce or disclaim an interest, in 

writing, either generally or in favor of a 

designated person or entity; and 

(e) Any other information determined 

to be relevant by OHA. 

§ 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. 

§ 30.203 What must a summary probate 

decision contain? 

The written decision in a summary 

probate proceeding must be in the form 

of findings of fact and conclusions of 

law, with a proposed decision and order 

of distribution. 

(a) The decision must contain all of 

the following elements: 

(1) One of the following: 

(i) If the decedent left legal heirs or 

devisees, the names of each heir or 

devisee with the identifying numbers 

assigned by BIA, their birth dates, 

relationships to the decedent, the 

distribution of shares of each heir or 

devisee, and the names of the recipients 

of renounced or disclaimed interests; or 

(ii) If the decedent did not leave legal 

heirs or devisees, a statement to that 

effect; 

(2) Citations to the law of descent and 

distribution in accordance with which 

the decision is made; 

(3) A statement allowing or 

disallowing claims against the estate in 

accordance with this part, and an order 

directing the amount of payment of all 

approved claims; 

(4) A statement approving or 

disapproving any renunciation; 

(5) A statement of whether the heirs 

or devisees are Indian, non-Indian, or 

eligible to hold property in trust status; 

(6) A statement advising all interested 

parties of their right to seek de novo 

review in accordance with this part, and 

that, if they fail to do so, the decision 

will become final 30 days after the 

mailing of the written decision; and 

(7) In a testate case only, a statement 

that: 

(i) Approves or disapproves a will; 

(ii) Interprets provisions of the 

approved will; and 

(iii) Describe the share each devisee is 

to receive, subject to any encumbrances. 

(b) When the judge or ADM issues a 

decision, the judge must issue a notice 

of the decision to all parties who have 

or claim any interest in the estate, and 

mail or deliver a copy of the notice, 

together with a copy of the decision, to 

each affected agency and to each 

interested party. 

§ 30.204 How do I seek review of a 

summary probate proceeding? 

(a) If you are an interested party who 

is adversely affected by the written 

decision in a summary probate 

proceeding, you may seek de novo 

review of the case by filing a request 

with the OHA office that issued the 

decision. 

(b) The request for de novo review 

must be in writing and signed, and must 

contain the following information: 

(1) The name of the decedent; 


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(2) A description of the requestor’s 

relationship to the decedent; 

(3) An explanation of what errors the 

requestor alleges were made; and 

(4) An explanation of how the 

requestor is adversely affected by the 

decision. 

(c) You must send or deliver the 

request to OHA within 30 days after the 

date the decision is mailed. 

§ 30.205 What happens after I file a 

request for de novo review? 

(a) Within 10 days of receiving a 

request for de novo review, OHA will 

notify the agency that prepared the 

probate file, all other affected agencies, 

and all interested parties of the de novo 

review, and assign the case to a judge. 

(b) The judge will review the merits 

of the case, conduct a hearing as 

necessary or appropriate under the 

regulations in this part, and issue a new 

decision in accordance with this part. 

§ 30.206 What happens if nobody files for 

de novo review? 

If no interested party requests de novo 

review within 30 days of the date of the 

written order, OHA will send: 

(a) The final order confirming the 

written decision to all interested parties 

with notice of the right to file a petition 

for rehearing under this part; 

(b) The complete original record and 

the final order to the agency that 

prepared the probate file; and 

(c) A copy of any relevant portions of 

the record to any other affected agency. 

Subpart J—Formal Probate 

Proceedings 

Notice 

§ 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. 

§ 30.211 Will the notice be published in a 

newspaper? 

The judge may cause a notice of 

hearing to be published in a newspaper 

of general circulation in the vicinity of 

the designated place of hearing not 

fewer than 20 calendar days before the 

hearing. The cost of publication may be 

paid from the assets of the estate under 

§ 30.144. 

§ 30.212 Can I waive notice of the hearing, 

the time limits, or form of notice? 

(a) An interested party may waive 

notice of hearing, the time limits, and 

the form of notice by: 

(1) Appearing at the hearing and 

participating in the hearing without 

objection; or 

(2) Filing a written waiver with the 

judge before the hearing. 

(b) The requirements for notice by 

posting may not be waived. 

§ 30.213 What notice to a tribe is required 

in a formal probate proceeding? 

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. 

§ 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 

§ 30.215 How can I obtain documentation 

related to the probate proceeding? 

(a) An interested party may make a 

written demand to produce documents 

for inspection and copying or 

photographing. This demand: 

(1) May be made at any stage of the 

proceeding before the conclusion of the 

hearing; 

(2) May be made upon any other party 

to the proceeding or upon a custodian 

of records concerning interested parties 

or their trust property; 

(3) Must be made in writing, and a 

copy must be filed with the judge; and 

(4) May demand copies of any 

documents, photographs, or other 

tangible things that are relevant to the 

issues, not privileged, and in another 

party’s or custodian’s possession, 

custody, or control. 

(b) Custodians of official records will 

furnish and reproduce documents, or 

permit their reproduction, in 

accordance with the rules governing the 

custody and control of the records. 

(c) Documentation may be made 

available to a member of the public, 

subject to any law to the contrary, who 

is not an interested party upon payment 

of the cost of producing the documents, 

as determined reasonable by the 

custodians of the records. 

§ 30.216 How does an interested party 

obtain permission to take depositions? 

(a) Depositions may be taken upon 

stipulation of the parties or by order of 

the judge. 


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(b) When an interested party files a 

written application, the judge may order 

the taking of the sworn testimony of any 

person by deposition upon oral 

examination for the purpose of 

discovery or for use as evidence at a 

hearing. The application must set forth: 

(1) The name and address of the 

proposed witness; 

(2) The reasons why the deposition 

should be taken; 

(3) The name and address of the 

person, qualified under § 30.217(a) to 

take depositions; and 

(4) The proposed time and place of 

the examination, which must be at least 

20 days after the date of the filing of the 

application. 

(c) The judge may order the taking of 

a deposition. The order must be served 

upon all interested parties and must 

state: 

(1) The name of the witness; 

(2) The time and place of the 

examination, which must be at least 15 

days after the date of the order; and 

(3) The name and address of the 

officer before whom the examination is 

to be made. 

(d) The officer and the time and place 

in paragraphs (c)(2) and (c)(3) of this 

section need not be the same as those 

requested in the application under 

paragraph (b) of this section. 

§ 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. 

§ 30.218 How may the transcript of a 

deposition be used? 

A transcript of a deposition ordered 

and taken in accordance with the 

provisions of this part may be offered by 

any party or the judge in a hearing if the 

judge finds that the evidence is 

otherwise admissible and: 

(a) The witness is unavailable; or 

(b) The interest of fairness is served 

by allowing the transcript to be used. 

§ 30.219 Who pays for the costs of taking 

a deposition? 

The party who requests the taking of 

a deposition must make arrangements 

for payment of any costs incurred. The 

judge may assign the costs in the order. 

§ 30.220 How does an interested party 

obtain written interrogatories and 

admission of facts and documents? 

(a) An interested party may serve 

upon any other interested party written 

interrogatories and requests for 

admission of facts and documents. The 

interested party may do this only if: 

(1) The interrogatories and requests 

are served in sufficient time to permit 

answers to be filed before the hearing, 

or as otherwise ordered by the judge; 

and 

(2) Copies of the interrogatories and 

requests are filed with the judge. 

(b) A party receiving interrogatories or 

requests served under paragraph (a) of 

this section must: 

(1) Serve answers upon the requesting 

party within 30 days from the date of 

service of the interrogatories or requests, 

or within another deadline agreed upon 

by the parties or prescribed by the 

judge; and 

(2) File a copy of the answers with the 

judge. 

§ 30.221 May the judge limit the time, 

place, and scope of discovery? 

Yes. The judge may limit the time, 

place, and scope of discovery: 

(a) Upon timely motion by any 

interested party, if that party also gives 

proper notice to all interested parties 

and shows good cause; or 

(b) When the judge determines that 

limits are necessary to prevent delay of 

the proceeding or prevent undue 

hardship to a party or witness. 

§ 30.222 What happens if a party fails to 

comply with discovery? 

(a) If a party fails without good cause 

to comply with discovery under this 

part or any order issued, the judge may: 

(1) Draw inferences with respect to 

the discovery request adverse to the 

claims of the party who has failed to 

comply with discovery or the order, or 

(2) Make any other ruling as the judge 

determines just and proper. 

(b) Failure to comply with discovery 

includes failure to: 

(1) Comply with a request for the 

production of a document; 

(2) Appear for examination; 

(3) Respond to interrogatories or 

requests for admissions; or 

(4) Comply with an order of the judge. 

§ 30.223 What is a prehearing conference? 

Before a hearing, the judge may order 

the parties to appear for a conference to: 

(a) Simplify or clarify the issues; 

(b) Obtain stipulations, admissions, 

agreements on documents, 

understandings on matters already of 

record, or similar agreements that will 

avoid unnecessary proof; 

(c) Limit the number of expert or 

other witnesses to avoid excessively 

cumulative evidence; 

(d) Facilitate agreements disposing of 

all or any of the issues in dispute; or 

(e) Resolve such other matters as may 

simplify and shorten the hearing. 

Hearings 

§ 30.224 Can a judge compel a witness to 

appear and testify at a hearing? 

(a) The judge can issue a subpoena for 

a witness to appear and testify at a 

hearing and to bring documents or other 

material to the hearing. 

(1) An interested party may request 

that the judge issue a subpoena for the 

appearance of a witness to testify. The 

request must state the name, address, 

and telephone number or other means of 

contacting the witness, and the reason 

for the request. The request must be 

timely. The requesting party must mail 

the request to all other interested parties 

and to the witness at the time of filing. 

(2) The request must specify the 

documents or other material sought for 

production under the subpoena. 

(3) The judge will grant or deny the 

motion or request in writing and mail 

copies of the order to all the interested 

parties. 

(4) A person subpoenaed may seek to 

avoid a subpoena by filing a motion to 

quash with the judge and sending 

copies to the interested parties. 

(b) Anyone whose legal residence is 

more than 100 miles from the hearing 

location may ask the judge to excuse his 

or her attendance under subpoena. 


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(1) If the judge denies the request, the 

judge may assign costs for the 

transportation of the witness to the 

place of hearing or deposition. 

(2) The judge will inform the 

interested parties of the request and the 

decision in writing in a timely manner. 

(c) A judge may assign the costs of 

requiring a non-party to appear at a 

hearing or a deposition. 

(d) If a subpoenaed person fails or 

refuses to appear at a hearing or to 

testify, the judge may file a petition in 

United States District Court for issuance 

of an order requiring the subpoenaed 

person to appear and testify. 

(e) The judge may seek by petition to 

the appropriate United States District 

Court the invocation of powers of 

contempt when necessary and 

appropriate to ensure due process and 

orderly prosecution of probate cases 

under the law. 

§ 30.225 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. 

§ 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. 

§ 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. 

§ 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. 

§ 30.229 Is testimony required for selfproved wills, codicils, or revocations? 

The judge may approve a self-proved 

will, codicil, or revocation, if 

uncontested, and order distribution 

with or without the testimony of any 

attesting witness. 

§ 30.230 What if approval of the selfproved will, codicil, or revocation is 

contested? 

(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. 

§ 30.231 Who pays witnesses’ costs? 

(a) Interested parties who desire a 

witness to testify at a hearing must make 

their own financial and other 

arrangements for the witness. 

(b) The judge may order payment of 

per diem, mileage, and subsistence at a 

rate not to exceed that allowed to 

witnesses called in the U.S. District 

Courts. 

(c) In the order for payment, the judge 

must specify whether such costs are to 

be allocated and charged against the 

interest of the party calling the witness 

or against the estate. 

(d) Costs of administration allowed 

against the estate under paragraphs (b) 

or (c) of this section will have a priority 

for payment greater than that for any 

creditor claims allowed. 

§ 30.232 May a judge schedule a 

supplemental hearing? 

Yes. A judge may schedule a 

supplemental hearing if he or she deems 

it necessary. 

§ 30.233 What will the official record of the 

probate case contain? 

After the completion of the hearing, 

the judge will compile the official 

record. The official record of the probate 

case will contain: 

(a) A copy of the posted public notice 

of hearing showing the posting 

certifications; 

(b) A copy of each notice served on 

interested parties with proof of mailing; 

(c) The record of the evidence 

received at the hearing, including any 

transcript made of the testimony; 

(d) Claims filed against the estate; 

(e) Any wills, codicils, and 

revocations; 

(f) Inventories and valuations of the 

estate; 

(g) Pleadings and briefs filed; 

(h) Special or interim orders; 

(i) Copies of all proposed or accepted 

settlement agreements, consolidation 

agreements, and renunciations and 

acceptances of renounced property; 

(j) In the case of sale of estate property 

at probate, copies of notices of sale, 

appraisals and objections to appraisals, 

requests for purchases, all bids received, 

and proof of payment; 

(k) The decision, order, and the 

notices thereof; and 

(l) Any other documents or items 

deemed material by the judge. 

§ 30.234 What will the judge do with the 

original record? 

(a) The judge must send the original 

record to the designated LTRO in 

accordance with 25 CFR part 150. 

(b) The judge must send a copy of: 

(1) The order to the agency originating 

the probate, and 


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(2) The order and inventory to other 

affected agencies. 

§ 30.235 What happens if a hearing 

transcript has not been prepared? 

When a hearing transcript has not 

been prepared, the recording of the 

hearing must be retained in the office of 

the judge issuing the decision until the 

time allowed for rehearing or appeal has 

expired, and the original record 

returned to the LTRO must contain a 

statement indicating that no transcript 

was prepared. 

Decisions in Formal Proceedings 

§ 30.236 What will the judge’s decision in 

a formal probate proceeding contain? 

The judge must decide the issues of 

fact and law involved in any 

proceedings and issue a written 

decision. 

(a) In all cases, the decision will: 

(1) List the names of each heir or 

devisee with the identifying numbers as 

assigned by BIA, birth dates, and 

relationship to the decedent; 

(2) Describe the distribution of shares 

of each of the heirs, in addition to the 

names of the recipients of renounced or 

disclaimed interests; 

(3) Provide the information necessary 

to identify the persons and property 

interests involved in any settlement or 

consolidation agreement, renunciations 

of interest, and purchases at probate; 

(4) Allow or disallow claims against 

the estate in accordance with this part, 

and order the amount of payment for all 

approved claims; 

(5) Approve or disapprove any 

renunciation, settlement agreement, 

consolidation agreement, or purchase at 

probate; 

(6) State whether the heirs or devisees 

are Indian, non-Indian, or eligible to 

hold property in trust status; and 

(7) Include a determination of any 

rights of dower, curtesy, or homestead 

that may constitute a burden upon the 

interest of the heirs. 

(b) In a testate case, the decision will 

also: 

(1) Approve or disapprove a will; 

(2) Interpret provisions of the 

approved will; and 

(3) Describe the share each devisee is 

to receive, subject to any encumbrances. 

§ 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. 

§ 30.238 May I file a petition for rehearing 

if I disagree with the judge’s decision in the 

formal probate hearing? 

(a) Any interested party may file with 

the judge a written petition for rehearing 

within 30 days after the date on which 

notice of the decision is mailed. 

(b) If the petition is based on newlydiscovered evidence, it must: 

(1) Be accompanied by affidavits or 

declarations of witnesses stating fully 

the content of the new evidence; and 

(2) State the reasons for the failure to 

discover and present that evidence at 

the hearings held before the issuance of 

the decision. 

(c) A petition for rehearing must state 

specifically and concisely the grounds 

on which it is based. 

(d) The judge must forward a copy of 

the petition for rehearing to the affected 

agencies. 

§ 30.239 Does any distribution of the 

estate occur while a petition for rehearing 

is pending? 

The agencies must not initiate 

payment of claims or distribute any 

portion of the estate while the petition 

is pending, unless otherwise directed by 

the judge. 

§ 30.240 How will the judge address a 

petition for rehearing? 

(a) If proper grounds are not shown, 

or if the petition is not timely filed, the 

judge will issue an order denying the 

petition for rehearing and setting forth 

the reasons and furnish copies of the 

order to the petitioner, the agencies, and 

the interested parties. 

(b) If the petition appears to show 

merit, the judge must: 

(1) Cause copies of the petition and 

supporting papers to be served on those 

persons whose interest in the estate 

might be adversely affected by the 

granting of the petition; 

(2) Allow all persons served a 

reasonable, specified time in which to 

submit answers or legal briefs in 

response to the petition; and 

(3) Consider, with or without a 

hearing, the issues raised in the petition. 

(c) The judge may affirm, modify, or 

vacate the former decision. 

(d) Upon entry of a final order, the 

judge must distribute the order as 

provided in this part. 

§ 30.241 Can I submit another petition for 

rehearing? 

No. Successive petitions for rehearing 

are not permitted. The jurisdiction of 

the judge terminates upon the issuance 

of a decision finally disposing of a 

petition for rehearing, except for: 

(a) The issuance of necessary orders 

nunc pro tunc to correct clerical errors 

in the decision; and 

(b) The reopening of a case under this 

part. 

§ 30.242 When does the judge’s decision 

on a petition for rehearing become final? 

The decision will become final upon 

the expiration of the 30 days allowed for 

the filing of a notice of appeal, as 

provided in this part. 

§ 30.243 Can a closed probate case be 

reopened? 

(a) A person claiming an interest in an 

estate may file a petition for reopening 

a closed probate case with the OHA 

office that issued the original decision. 

(1) A case may be reopened based 

upon lack of notice or to prevent 

manifest injustice only. 

(2) All grounds for the reopening must 

be set forth fully. If based on alleged 

errors of fact, all such allegations must 

be under oath and supported by 

affidavits. 

(3) If the petition for reopening is 

based upon lack of notice of the original 

proceedings, the petition must be filed 

within 1 year from the date the 

petitioner discovered the error. 

(b) A judge may reopen a case on the 

judge’s own initiative. 

§ 30.244 How will the judge address my 

petition for reopening? 

(a) If the judge finds that proper 

grounds are not shown, the judge will 

issue an order denying the petition and 

giving the reasons for the denial. Copies 

of the judge’s decision must be mailed 

to the petitioner, the agencies, and those 

persons whose rights would be affected. 

(b) If the petition appears to show 

merit, the judge must cause copies of 

the petition and all papers filed by the 

petitioner to be served on those persons 

whose interest in the estate could be 

affected by the granting of the petition. 

These persons may respond to the 

petition by filing answers, crosspetitions, or briefs. The filings must be 

made within the time periods set by the 

judge. 

§ 30.245 What happens if the judge 

reopens the case? 

Upon reopening, the judge may 

affirm, modify, or vacate the former 

decision. 

(a) Copies of the judge’s decision on 

reopening must be mailed to the 

petitioner and to all persons who 

received copies of the petition. 

(b) By order directed to the agency, 

the judge may suspend further 

distribution of the estate or income 

during the reopening proceedings. 

(c) The judge must file the record 

made on a reopening petition with the 


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designated LTRO and must furnish a 

duplicate record to the affected 

agencies. 

§ 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 

§ 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 property to any 

of his or her grandparents or to the lineal descendant of a grandparent.

the devisee dies before the testator, leaving 

lineal descendants.

the lineal descendants take the right, title, or 

interest so given by the will per stirpes 

(b) For purposes of this section, 

relationship by adoption is equivalent to 

relationship by blood. 

§ 30.251 What happens if an heir or 

devisee knowingly participates in the willful 

and unlawful killing of the decedent? 

Any person who knowingly 

participates, either as a principal or as 

an accessory before the fact, in the 

willful and unlawful killing of the 

decedent, may not take, directly or 

indirectly, any inheritance or devise 

under the decedent’s will. This person 

will be treated as if he or she had 

predeceased the decedent. 

§ 30.252 Can a judge allow fees for 

attorneys representing interested parties? 

(a) Except for attorneys representing 

creditors, the judge may allow fees for 

attorneys representing interested 

parties. 

(1) At the discretion of the judge, 

these fees may be charged against the 

interests of the party represented or as 

a cost of administration. 

(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. 

§ 30.253 How must minors or other legal 

incompetents be represented? 

Minors and other legal incompetents 

who are interested parties must be 

represented at all hearings by legally 

appointed guardians, or by guardians ad 

litem appointed by the judge. In 

appropriate cases, the judge may order 

the payment of fees to the guardian ad 

litem from the assets of the estate. 

§ 30.254 What happens when a person 

dies without a valid will and has no heirs? 

(a) The judge will determine whether 

a person with trust or restricted 

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 

§ 30.260 What land is subject to a tribal 

purchase option at probate? 

Sections 30.260 through 30.274 apply 

to formal proceedings in Indian probate 

that relate to the tribal purchase of a 

decedent’s interests in the trust and 

restricted land shown in the following 

table. 

Location of trust or restricted land Legislation governing purchase 

(a) Yakima Reservation or within the area ceded by the Treaty of June 

9, 1855 (12 Stat. 1951).

The Act of December 31, 1970 (Pub. L. 91–627; 84 Stat. 1874; 25 

U.S.C. 607 (1976)), amending section 7 of the Act of August 9, 1946 

(60 Stat. 968). 

(b) Warm Springs Reservation or within the area ceded by the Treaty 

of June 25, 1855 (12 Stat. 37).

The Act of August 10, 1972 (Pub. L. 92–377; 86 Stat. 530). 

(c) Nez Perce Indian Reservation or within the area ceded by the Treaty of June 11, 1855 (12 Stat. 957).The Act of September 29, 1972 (Pub. L. 92–443; 86 Stat. 744). 

(d) Devils Lake Sioux Reservation for the Spirit Lake Sioux Tribe ......... The Act of January 12, 1983 (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). 

§ 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. 

§ 30.262 When will BIA furnish a valuation 

of a decedent’s interests? 

In all probates, at the earliest possible 

stage of the proceeding before issuance 

of a probate decision, BIA must furnish 

a valuation of the decedent’s interests 

when the record reveals to the agency: 

(a) That the decedent owned interests 

in land located on one or more of the 

reservations designated in § 30.260; and 


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(b) That one or more of the probable 

heirs or devisees who may receive the 

interests either: 

(1) Is not enrolled in the tribe of the 

reservation where the land is located; or 

(2) Does not have the required blood 

quantum in the tribe to hold the 

interests against a claim made by the 

tribe. 

(c) The valuation must be made on the 

basis of the fair market value of the 

property, including fixed 

improvements, as of the date of 

decedent’s death. 

(d) If there is a surviving spouse 

whose interests may be subject to the 

tribal purchase option, the valuation 

must include the value of a life estate 

based on the life of the surviving spouse 

in one-half of such interests. 

(e) BIA must include the valuation 

report in the probate package submitted 

to OHA. Interested parties may examine 

and copy, at their expense, the valuation 

report at the agency or the office of the 

judge. 

§ 30.263 When is a final decision issued? 

(a) When a decedent is shown to have 

owned land interests in any one or more 

of the reservations designated in 

§ 30.260, the probate proceeding relative 

to the determination of heirs, approval 

or disapproval of a will, and the claims 

of creditors will first be concluded as 

final for the Department in accordance 

with this part. This decision is referred 

to in this section as the ‘‘probate 

decision.’’

(b) At the formal probate hearing, a 

finding must be made on the record 

showing those interests in land, if any, 

that are subject to the tribal purchase 

option. 

(1) The finding must be included in 

the probate decision setting forth the 

apparent rights of the tribe as against 

affected heirs or devisees and the right 

of a surviving spouse whose interests 

are subject to the tribal purchase option 

to reserve a life estate in one-half of 

such interests. 

(2) If the finding is that there are no 

interests subject to the tribal purchase 

option, the decision must so state. 

(3) A copy of the probate decision, to 

which must be attached a copy of the 

valuation report, must be distributed to 

all interested parties in accordance with 

§ 30.237. 

§ 30.264 When may a tribe exercise its 

statutory option to purchase? 

(a) A tribe may purchase all or a part 

of the available interests specified in the 

probate decision within 60 days of the 

probate decision unless a petition for 

rehearing has been filed under § 30.238 

or a demand for hearing has been filed 

under § 30.268. 

(b) If a petition for rehearing or a 

demand for hearing has been filed, a 

tribe may purchase all or a part of the 

available interests specified in the 

probate decision within 20 days from 

the date of the decision on rehearing or 

hearing, whichever is applicable. A tribe 

may not, however, claim an interest less 

than the decedent’s total interest in any 

one individual tract. 

(c) Upon failure to timely file a notice 

of purchase, the right to distribution of 

all unclaimed interests will accrue to 

the heirs or devisees. 

§ 30.265 How does a tribe exercise its 

statutory option to purchase? 

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. 

§ 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. 

§ 30.267 What if I disagree with the 

probate decision regarding tribal purchase 

option? 

Any interested party aggrieved by the 

probate decision may, within 30 days 

from the date of the probate decision, 

file with the judge a written petition for 

rehearing in accordance with this part. 

§ 30.268 May I demand a hearing regarding 

the tribal purchase option decision? 

Yes. Any interested party aggrieved 

by the exercise of the tribal purchase 

option to purchase the interests in 

question or the valuation of the interests 

as set forth in the valuation report may 

file with the judge a written demand for 

hearing. 

(a) The demand for hearing must be 

filed by whichever of the following 

deadlines is applicable: 

(1) Within 30 days from the date of 

the probate decision; 

(2) Within 30 days from the date of 

the decision on rehearing; or 

(3) Within 20 days from the date the 

tribe exercises its option to purchase 

available interests. 

(b) The demand for hearing must: 

(1) Include a certification that copies 

of the demand have been mailed on the 

same date to the agency and to each 

interested party; and 

(2) State specifically and concisely the 

grounds upon which it is based. 

§ 30.269 What notice of the hearing will the 

judge provide? 

The judge must, upon receiving a 

demand for hearing: 

(a) Set a time and place for the 

hearing after expiration of the 30-day 

period fixed for the filing of the demand 

for hearing as provided in § 30.268; and 

(b) Mail a notice of the hearing to all 

interested parties not less than 20 days 

in advance of the hearing. 

§ 30.270 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 §§ 4.320 

through 4.326 of this subtitle. 

(d) The judge must lodge the complete 

record relating to the demand for 

hearing with the LTRO as provided in 

§ 30.234, furnish a duplicate record 

thereof to the agency, and mail a notice 

of such action together with a copy of 

the decision to each interested party. 

§ 30.271 How must the tribe pay for the 

interests it purchases? 

(a) A tribe must pay the full fair 

market value of the interests purchased, 

as set forth in the valuation report or as 

determined after hearing in accordance 

with § 30.268, whichever is applicable. 

(b) Payment must be made within 2 

years from the date of decedent’s death 

or within 1 year from the date of notice 

of purchase, whichever is later. 


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§ 30.272 What are the Superintendent’s 

duties upon payment by the tribe? 

Upon payment by the tribe of the 

interests purchased, the Superintendent 

must: 

(a) Issue a certificate to the judge that 

payment has been made; and 

(b) File with the certificate all 

supporting documents required by the 

judge. 

§ 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 § 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. 

§ 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 § 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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