[Federal Register Volume 66, Number 250 (Monday, December 31, 2001)]
[Rules and Regulations]
[Pages 67652-67667]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-32051]



[[Page 67651]]

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Part IV





Department of the Interior





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Office of Hearings and Appeals



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43 CFR Part 4



Trust Management Reform: Probate of Indian Trust Estates; Final Rule

Federal Register / Vol. 66, No. 250 / Monday, December 31, 2001 / 
Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Office of Hearings and Appeals

43 CFR Part 4

RIN 1090-AA78


Trust Management Reform: Probate of Indian Trust Estates

AGENCY: Office of Hearings and Appeals, Office of the Secretary, 
Interior.

ACTION: Final rule.

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SUMMARY: The Department of the Interior, Office of Hearings and Appeals 
(OHA), is revising its regulations regarding hearings and appeals 
involving the probate of property and funds held in trust or restricted 
status for individual Indians and Alaska Natives. The revisions make 
OHA's probate regulations consistent with those published on January 
22, 2001, by the Bureau of Indian Affairs (BIA) to accommodate BIA's 
re-assumption of responsibility for some probate cases. OHA's revisions 
will ensure that BIA and OHA apply the same standards and criteria for 
determining heirs and paying claims, and that they coordinate their 
procedures to expedite the probate process for Indian decedents' 
estates. This final rule reflects comments OHA received on the interim 
rule it published on June 18, 2001.

DATES: This rule is effective January 30, 2002.

FOR FURTHER INFORMATION CONTACT: Charles E. Breece, Principal Deputy 
Director, Office of Hearings and Appeals, 4015 Wilson Boulevard, 
Arlington, Virginia 22203, telephone 703-235-3810.

SUPPLEMENTARY INFORMATION:
I. Background
II. Section-by-Section Analysis and Response to Comments
III. Procedural Requirements
    A. Review Under Executive Order 12866 (Regulatory Planning and 
Review)
    B. Review Under Executive Order 12988 (Civil Justice Reform)
    C. Review Under the Regulatory Flexibility Act
    D. Review Under Small Business Regulatory Enforcement Fairness 
Act of 1996
    E. Review Under the Paperwork Reduction Act
    F. Review Under Executive Order 13132 (Federalism)
    G. Review Under the National Environmental Policy Act
    H. Review Under the Unfunded Mandates Reform Act of 1995
    I. Review Under Executive Order 12630 (Takings Implication 
Assessment)
    J. Review under Executive Order 13175 (Tribal Consultation)
    K. Review under Executive Order 13211 (Energy Impacts)
IV. List of Subjects

I. Background

    On June 18, 2001, the Office of Hearings and Appeals (OHA) 
published an interim rule amending several sections of its Indian 
probate regulations at 43 CFR part 4, subpart D. 66 FR 32884; see also 
66 FR 33740 (June 25, 2001) (corrections). These regulatory changes, 
which were made immediately effective, were designed to make OHA's 
regulations consistent with the new 25 CFR part 15 that had been 
published by the Bureau of Indian Affairs (BIA) on January 22, 2001. 66 
FR 7068 (effective March 23, 2001). Additional information concerning 
the background of the present rulemaking is found in the preamble to 
OHA's interim rule.
    OHA requested comments on its interim rule, and several comments 
were received during the comment period that ended August 17, 2001. 
Commenters included the Office of Personnel Management (OPM), the 
Governmental Affairs Office of the American Bar Association (ABA), the 
Federal Administrative Law Judges Conference (FALJC), the FORUM of 
United States Administrative Law Judges (FORUM), and a number of 
individuals. On September 17, 2001, OHA officials met with Raymond 
Limon, Acting Deputy Assistant Director of OPM's Office of 
Administrative Law Judges, who requested the meeting to reiterate the 
concerns expressed in OPM's written comments. This final rule makes 
additional changes to 43 CFR part 4, subpart D in response to the 
comments OHA received. A discussion of the specific comments received 
and OHA's response thereto is included in the Section-by-Section 
Analysis below.
    As explained in the interim rule, OHA is using the current 
rulemaking process (including the interim and final rules) to adopt 
those changes to its previous regulations that are necessary to avoid 
inconsistencies in the processing of Indian probate cases between BIA 
and OHA deciding officials. However, these changes are not intended to 
serve as the Department's final word on the Indian probate process. BIA 
and OHA are both contemplating further revisions to improve the probate 
process and make the regulations easier to understand, and the two 
organizations will work together on such changes over the coming 
months.

II. Section-by-Section Analysis and Response to Comments

    As explained above, the purpose of the changes to 43 CFR part 4, 
subpart D, is to make the policies and procedures that OHA uses to 
probate an Indian decedent's trust estate consistent with those adopted 
by BIA earlier this year, to ensure uniformity of treatment within the 
Department. The various provisions of subpart D address the purpose and 
scope of the Indian probate procedures; the mechanics of initiating the 
probate process; the disposition of claims against an estate; the 
ultimate distribution of the decedent's assets to the determined heirs 
or beneficiaries; and an appeals process to follow should disputes 
arise during any stage of the probate process. For reasons explained 
below, this final rule repromulgates all provisions of 43 CFR part 4, 
subpart D dealing with the Indian probate process, including the 
provisions revised in the interim rule.
    The interim rule was effective upon publication, on June 18, 2001. 
One commenter requested clarification as to whether the effective date 
meant that the new provisions of the rule applied to all pending cases 
or only to new cases. The commenter noted that, to the extent any new 
provisions of the interim or final rule might alter the substantive 
rights of affected parties, applying those provisions to pending cases 
could raise concerns over retroactivity, which the law generally 
disfavors. See Landgraf v. USI Film Products, 511 U.S. 244 (1994); 
Bowen v. Georgetown University Hospital, 488 U.S. 408 (1988). To avoid 
such concerns, OHA will apply any new substantive provisions of either 
the interim or final rule only to cases arising after their respective 
effective dates, i.e., to cases in which the decedent died after the 
effective date of the rule.

Section 4.200  Scope of Regulations

    By way of a technical amendment, this section is revised to clarify 
that the probate procedures in subpart D do not apply to the restricted 
property of deceased members of the Five Civilized Tribes and deceased 
Osage Indians. The probate procedures do apply, however, to any funds 
or property that may be held in trust for such decedents. This revision 
makes Sec. 4.200 consistent with BIA's regulations at 25 CFR 15.3.

Section 4.201  Definitions

    This section is revised from the interim rule to delete the 
definition of ``administrative law judge'' and to add a definition of 
``OHA deciding official.'' Within OHA, Indian probate cases are handled 
either by administrative law judges, who are appointed under 5 U.S.C. 
3105, or by Indian probate judges, who are senior attorney-advisers 
appointed pursuant to specific congressional authority to handle these 
cases. See Pub. L. 106-113, App. C, Sec.

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124, 113 Stat. 1501A-160 (Nov. 29, 1999); Pub. L. 106-291, Sec. 117, 
114 Stat. 943 (Oct. 11, 2000).
    In the interim rule, OHA was revising only 12 out of 63 sections 
within subpart D dealing with the Indian probate process, since only 
those 12 sections had provisions that potentially conflicted with the 
new BIA regulations at 25 CFR part 15. However, all of the relevant 
sections within subpart D referred to the OHA deciding official for 
probate cases as ``the administrative law judge.'' Rather than revise 
all of subpart D in the interim rule to add references to Indian 
probate judges, OHA decided to revise its definition of 
``administrative law judge,'' for purposes of subpart D only, to 
include both judges appointed under 5 U.S.C. 3105 and other OHA 
deciding officials designated by the Director. OHA explained in the 
preamble that it would consider revising all of subpart D in the future 
to use a longer phrase such as ``administrative law judge or other OHA 
deciding official'' wherever the term ``administrative law judge'' 
appeared in subpart D.
    OPM, ABA, FALJC, and FORUM all submitted comments objecting to the 
revised definition of ``administrative law judge'' in the interim rule. 
As explained by these commenters, the term ``administrative law judge'' 
is a term of art used in the Administrative Procedure Act and other 
statutes and regulations, where its meaning is limited to judges 
appointed under 5 U.S.C. 3105. OHA's inclusion of Indian probate judges 
in the subpart D definition of ``administrative law judge,'' the 
commenters argued, could confuse the public as to the identity of the 
OHA deciding official handling any particular case, i.e., whether he or 
she had been selected through OPM's competitive process for hiring 
administrative law judges and was covered by the statutory and 
regulatory protections designed to ensure the independence of 
administrative law judges.
    In response to these comments, OHA has decided to delete the 
expanded definition of ``administrative law judge'' in the interim rule 
and instead use the phrase ``OHA deciding official'' wherever the 
regulations previously used the phrase ``administrative law judge.'' 
Other options that were considered included ``administrative law judge 
or other OHA deciding official'' and ``administrative law judge or 
Indian probate judge,'' but OHA chose ``OHA deciding official'' as 
shorter and less awkward than those alternatives. ``OHA deciding 
official'' is also more consistent with the usage adopted by BIA in its 
probate rule. In this final rule, a definition of ``OHA deciding 
official'' has been added to include both administrative law judges and 
Indian probate judges.
    In addition to revising Sec. 4.201, this final rule repromulgates 
all provisions of 43 CFR part 4, subpart D dealing with the Indian 
probate process, to substitute the phrase ``OHA deciding official'' for 
the previous term ``administrative law judge.'' \1\
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    \1\ These provisions of subpart D have also been revised to be 
more inclusive in their use of personal pronouns. Thus ``he'' has 
become ``he or she''; ``him'' has become ``him or her''; and ``his'' 
has become ``his or her.'' Minor other editorial changes have also 
been made for improved clarity, such as changing some plural 
subjects and verbs to singular and changing the auxiliary verb 
``shall'' to ``must,'' ``will,'' or ``may,'' depending on the 
context.
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    Section 4.201 has also been revised to clarify the treatment of 
restricted property in the definitions of ``probate'' and ``restricted 
property,'' consistent with the change to Sec. 4.200 discussed above.

Section 4.210  Commencement of Probate

    One commenter suggested that OHA add a reference to 25 CFR 15.104 
in the second sentence of this section, along with the current 
reference to 25 CFR 15.202, to more fully describe the documents that 
must be included in the probate package referred to OHA. OHA agrees 
with the commenter and has added the suggested reference.
    The commenter also suggested that OHA restore certain provisions 
from its previous version of 43 CFR 4.210, namely former paragraphs 
(b)(3) and (c), to cover documents that may be useful in the probate 
process but that are not specifically listed in 25 CFR 15.104 and 
15.202. The commenter recommended that BIA should likewise add these 
provisions to its regulations. OHA believes the new version of 43 CFR 
4.210 in this final rule is adequate to cover these documents, given 
the reference to ``any other relevant information''; but OHA will 
consult with BIA on whether the information covered by former 
4.210(b)(3) and (c) should be added specifically to BIA's regulations 
in a subsequent rulemaking.

Section 4.243  Appeals From BIA

    The interim rule added a new section 4.243 to set forth procedures 
to be followed when a probate matter is appealed from the decision of a 
BIA deciding official to an OHA deciding official. The last sentence of 
the section provided that the BIA deciding official ``must forward [to 
OHA] the entire file upon which the BIA deciding official's decision 
was based.'' One commenter suggested that the phrase ``the entire 
file'' be changed to ``all documents or other evidence'' upon which the 
BIA deciding official's decision was based, since ``the entire file'' 
may contain unnecessary documents such as cover memorandums, status 
notes, and driving directions. OHA has accepted the suggestion, but has 
used the slightly different phrase ``all documents and other evidence'' 
in place of ``the entire file.''

Section 4.250  Filing and Proof of Creditor Claims; Limitations

    The interim rule revised paragraph (a) of this section to provide 
that all claims against the estate of a deceased Indian held by 
creditors chargeable with notice of the decedent's death must be filed 
within 60 days from the date BIA receives verification of the 
decedent's death, in accordance with 25 CFR 15.303(c). The previous 
rule had provided that claims had to be filed prior to the conclusion 
of the first hearing, typically within 20 days of the notice provided 
under Sec. 4.211. Commenters raised two issues concerning this revision 
to Sec. 4.250(a).
    The first issue raised by the commenters is what happens if a 
creditor is not chargeable with notice of the decedent's death until 
near the end of or after the expiration of the 60-day period from the 
date BIA received verification of the death. The commenters pointed out 
that the only provision in the regulations for notice to creditors is 
Sec. 4.211, which requires the posting of notice of the hearing at 
least 20 days in advance thereof and service on known parties in 
interest. By the time the hearing is set and notice is provided, the 
commenters observed, the 60-day period from the date BIA received 
verification of the death is likely to be long over.
    OHA agrees that there is likely to be a significant hiatus between 
the end of the 60-day period in 25 CFR 15.303(c) and the posting and 
service of the hearing notice under Sec. 4.211. However, many if not 
most creditors will have notice of the decedent's death when it occurs 
or shortly thereafter. Such creditors would typically include any 
relatives and friends of the decedent who may have claims against the 
estate; the tribe; anyone with claims for medical expenses of the last 
illness, nursing home or other care facility expenses, or funeral 
expenses; and other creditors in the decedent's community. Many of 
these creditors will have notice of the death even before BIA receives 
any verification of the death.
    In addition, BIA has informed OHA that it intends to provide public 
notice,

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comparable to that required by Sec. 4.211, when BIA has received 
verification of the death. Thus other creditors may also be chargeable 
with notice much sooner than the posting and service of the hearing 
notice. In many if not most instances, therefore, application of the 
60-day provision of Sec. 4.250(a) will not work any hardship on the 
creditors.
    The commenters may still be right, however, that at least some 
creditors will not be chargeable with notice until near the end of or 
after the expiration of the 60-day period from the date BIA received 
verification of the death. Because the intent of the previous OHA rule 
was to give creditors at least 20 days from the date of actual or 
constructive notice of the death to submit their claims, this final 
rule further revises Sec. 4.250(a) to provide that all claims must be 
filed with the agency (i) within 60 days from the date BIA receives a 
certified copy of the death certificate or other verification of the 
decedent's death under 25 CFR 15.101 or (ii) within 20 days from the 
date the creditor is chargeable with notice of the decedent's death, 
whichever of these dates is later.
    Determination of the date on which a creditor was chargeable with 
notice will have to be made on a case-by-case basis by the OHA deciding 
official. BIA and OHA are considering adopting a regulation requiring 
BIA to publish a notice once BIA has verified the decedent's death, and 
requiring creditors to file all claims within 60 days from the date of 
publication. This approach would provide a uniform filing deadline for 
all creditors' claims and would simplify the determination required of 
the OHA deciding official. Because this proposal is beyond the scope of 
the interim rule, it will be considered in connection with a future 
rulemaking by BIA and OHA.
    The second issue noted by the commenters is a potential conflict 
between the 60-day limitation in Sec. 4.250(a) and the provisions of 
Sec. 4.250(d), which provided that individual Indians could present 
claims against the estate by oral evidence at the hearing.
    As explained previously in this preamble and more fully in the 
preamble to the interim rule, the intent of this rulemaking is to 
harmonize OHA's Indian probate rules with BIA's, which were the product 
of a lengthy process of analysis within the Department and consultation 
with tribes and tribal organizations. One of the policy decisions that 
resulted from that process was a decision to set certain limits on the 
filing and allowance of claims so as to preserve more of the trust 
estate for the benefit of the decedent's heirs or beneficiaries. In 
deference to this policy decision, this final rule deletes 
Sec. 4.250(d). As a result, individual Indians chargeable with notice 
of the decedent's death must file any claims they may have against the 
estate within the applicable 60- or 20-day period provided in 
Sec. 4.250(a), as revised.
    Paragraph (c) of this section has also been revised so that the 
procedural requirements for filing claims are applicable to all 
claimants, since the alternative procedures previously available to 
individual Indian claimants under former paragraph (d) have been 
eliminated.

Section 4.251  Priority of Claims

    One commenter observed that revised Sec. 4.251 does not 
specifically mention the claims of federal agencies, such as those of 
the Farm Services Agency, the Social Security Administration, and the 
Internal Revenue Service. The commenter asked if such agencies would 
need to file their claims in tribal court before the claims could be 
allowed against the estate. Under Sec. 4.251(b)-(c), federal agency 
claims that have been reduced to judgment by a court of competent 
jurisdiction would be entitled to priority, while federal agency claims 
that have not been reduced to judgment would be treated as general 
claims.
    The commenter also asked what would happen to BIA-approved 
mortgages against trust property and any assignment of income the 
decedent had executed with the mortgage. These regulations do not 
affect the mortgage interest held by the lending agency, which would 
have a range of options available to it, including filing a claim 
against the trust estate for the unpaid loan balance, foreclosing on 
the mortgage, and/or making some arrangement for repayment with the 
decedent's heirs or beneficiaries. This final rule does not make any 
substantive changes to this section.
    In addition to these comments, questions have been raised 
concerning Sec. 4.251(e)-(f), specifically, at what point in time the 
OHA deciding official is to determine the amount of money in the 
decedent's individual Indian money (IIM) account. Section 4.252 
provides that ``all trust moneys of the deceased on hand or accrued at 
the time of death * * * may be used for the payment of claims,'' which 
may indicate that the time of death should be used to determine the 
amount in the IIM account for purposes of Sec. 4.251(e)-(f). On the 
other hand, Sec. 4.251(g) provides that ``claims will not be 
enforceable against the estate after the estate is closed,'' which 
indicates that funds deposited in the IIM account after the date of 
death are available to pay claims, up until the time the estate is 
closed.
    Section 4.252 is unchanged from the previous version of the OHA 
probate regulations, published in 1971. Under Sec. 4.251(d) of those 
regulations, estates could be held open for up to 7 years to allow the 
payment of some claims. Thus it is clear that Sec. 4.252 was never 
intended to limit the funds available for the payment of claims to 
those accrued at the time of the decedent's death. In the interim rule, 
OHA revised Sec. 4.251 to be consistent with the new BIA rules at 25 
CFR 15.305-15.309, and deleted the provision allowing estates to remain 
open for up to 7 years for the payment of claims. But consistent with 
25 CFR 15.308, funds deposited in the IIM account during the probate 
process itself are available to pay claims.
    Section 4.251(e)-(f) both refer to the order issued by the OHA 
deciding official governing the payment of claims. That order is based 
on the record made at the hearing, and it is that order that BIA and 
OTFM will follow in distributing the estate under Sec. 4.273. It 
appears from these provisions, therefore, that the OHA deciding 
official should determine the amount of money available in the IIM 
account as of the date of the hearing, and base his or her 
determinations under Sec. 4.251(e)-(f) on that amount. This final rule 
revises Sec. 4.251(e) and (f) to clarify this point.

Section 4.273  Distribution of Estates

    The interim rule renumbered and revised this section to provide 
that, unless the Superintendent has received a copy of a petition for 
rehearing filed pursuant to Sec. 4.241(a) or a copy of a notice of 
appeal filed pursuant to Sec. 4.320(b), he or she must initiate the 
payment of claims, distribution of the estate, and other actions 
required by the final order of the OHA deciding official. One commenter 
suggested adding a reference to the 60-day period allowed for filing a 
petition for rehearing or a notice of appeal. That suggestion has been 
adopted in this final rule, although the time period has been set at 75 
days to reflect the additional 15-day grace period provided in 25 CFR 
15.312.

Section 4.301  Valuation Report

    By way of a technical amendment, Sec. 4.301 is revised to change 
the term ``appraisal'' to ``valuation.'' Depending upon the 
circumstances, BIA uses various approaches or methodologies to 
determine the appropriate value of property. A formal appraisal is one 
of these approaches, but is not required in

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every case. Therefore, the more general term ``valuation'' is 
substituted for ``appraisal'' in Sec. 4.301. The same change has been 
made to Secs. 4.236, 4.302, 4.305, and 4.306.

III. Procedural Requirements

A. Review Under Executive Order 12866 (Regulatory Planning and Review)

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Department must determine whether a regulatory action is 
``significant'' and therefore subject to OMB review and the 
requirements of the Executive Order. The Order defines a ``significant 
regulatory action'' as one that is likely to result in a rule that may 
(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 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.
    This rule describes how the federal government will administer its 
trust responsibility in probating the trust and restricted property 
interests of individual Indians. Thus, the impact of the rule is 
confined to the federal government and Indian trust beneficiaries and 
does not impose a compliance burden on the economy generally. 
Accordingly, it has been determined that this rule is not a 
``significant regulatory action'' from an economic standpoint and that 
it does not otherwise create any inconsistencies or budgetary impacts 
on any other agency or federal program.

B. Review Under Executive Order 12988 (Civil Justice Reform)

    With respect to both the review of existing regulations and the 
promulgation of new regulations, subsection 3(a) of Executive Order 
12988, ``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes 
on Executive agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction.
    With regard to the review of new regulations, subsection 3(b) of 
Executive Order 12988 specifically requires that Executive agencies 
make every reasonable effort to ensure that the regulations (1) clearly 
specify the preemptive effect, if any; (2) clearly specify any effect 
on existing Federal law or regulation; (3) provide a clear legal 
standard for affected 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 affecting 
clarity and general draftsmanship under any guidelines issued by the 
Attorney General.
    Subsection 3(c) of Executive Order 12988 requires agencies to 
review new regulations in light of applicable standards in section 3(a) 
and section 3(b) to determine whether they are met or it is 
unreasonable to meet one or more of them. The Department has determined 
that this rule meets the relevant standards of Executive Order 12988.

C. Review Under the Regulatory Flexibility Act

    This rule was also reviewed under the Regulatory Flexibility Act, 5 
U.S.C. 601 et seq., which requires preparation of a regulatory 
flexibility analysis for any rule which is likely to have significant 
economic impact on a substantial number of small entities.
    This rule streamlines the Department's policies and procedures that 
apply to certain Indian trust resources. Indian tribes are not small 
entities under the Regulatory Flexibility Act. Any impacts on 
identified small entities affected by this rulemaking are minimal, as 
they would concern a small number of farmers, ranchers, and individuals 
doing business on Indian lands (e.g., convenience stores, gasoline 
stations, sundry shops). Accordingly, the Department has determined 
that this rule will not have a significant economic impact on a 
substantial number of small entities, and, therefore, no regulatory 
flexibility analysis has been prepared.

D. Review Under the Small Business Regulatory Enforcement Fairness Act 
of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100,000,000 or 
more. The revised subpart represents programs that are ongoing within 
the Department, and no new monies are being introduced into the stream 
of commerce. This rule will not result in a major increase in costs or 
prices. The effect of this rulemaking will be to streamline ongoing 
policies, procedures, and management operations of the Department in 
probating individual Indian trust and/or restricted property. No 
increase in costs for administration will be realized, and no prices 
would be affected through these minor revisions to existing practice.
    This rule will not result in any significant adverse effects on 
competition, employment, investment, productivity, or innovation, nor 
on the ability of United States-based companies to compete with 
foreign-based companies in domestic and export markets. The impact of 
the rule will be realized primarily by individual Indians having a 
protected trust resource. These administrative revisions to 
departmental policy and procedure will not otherwise have a significant 
impact any small businesses or enterprises.

E. Review Under the Paperwork Reduction Act

    This rule is exempt from the requirements of the Paperwork 
Reduction Act, since it applies to the conduct of agency administrative 
proceedings involving specific individuals and entities. 44 U.S.C. 
3518(c); 5 CFR 1320.4(a)(2). An OMB form 83-1 is not required.

F. Review Under Executive Order 13132 (Federalism)

    This rule will not have 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. While this rule may be of interest to tribes, 
there is no Federalism impact on the trust relationship or balance of 
power between the United States government and the various tribal 
governments affected by this rulemaking. Therefore, in accordance with 
Executive Order 13132, it is determined that this rule will not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment.

G. Review Under the National Environmental Policy Act of 1969

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. Therefore, neither an 
Environmental Assessment nor an Environmental

[[Page 67656]]

Impact Statement is necessary for this rule.

H. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995, Public Law 
104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on state, local, and tribal 
governments and the private sector. Under section 202 of the Act, the 
Department generally must prepare a written statement, including a 
cost-benefit analysis, for proposed and final rules with ``Federal 
mandates'' that may result in expenditures to state, local, and tribal 
governments, in the aggregate, or to the private sector, of $100 
million or more in any one year. This rule will not result in the 
expenditure by state, local, and tribal governments, in the aggregate, 
or by the private sector, of $100 million or more in any one year.

I. Review Under Executive Order 12630 (Takings)

    In accordance with Executive Order 12630, this rule does not have 
significant takings implications. This rule does not involve the 
``taking'' of private property interests.

J. Review Under Executive Order 13175 (Tribal Consultation)

    The Department determined that, because revisions to 43 CFR part 4, 
subpart D could have tribal implications, it would consult with tribal 
governments on this rulemaking. These consultations were in keeping 
with Executive Order 13175, ``Consultation and Coordination with Indian 
Tribal Governments.'' In promulgating its own probate regulations, BIA 
had consulted extensively with tribal governments. Because OHA was 
effectively incorporating certain BIA regulations into its regulations, 
tribal governments were aware of the substance of the OHA regulations 
even prior to publication of the interim rule. However, the Department 
undertook an additional consultation process by providing a draft of 
the interim rule to all the tribes and to the National Congress of 
American Indians and by soliciting their comments. No comments were 
received from any tribe or tribal organization during this pre-proposal 
comment period.
    In addition, tribal governments were notified of the substance of 
this rulemaking through the publication of the interim rule in the 
Federal Register and through a direct mailing to tribal leaders. These 
steps enabled tribal officials and the affected tribal constituency 
throughout Indian Country to have meaningful and timely input in the 
development of the final rule.

K. Review Under Executive Order 13211 (Energy Impacts)

    The Department has determined that this rule is not a ``significant 
energy action'' as defined in Executive Order 13211, ``Actions 
Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 18, 2001), because it is not a 
significant regulatory action under Executive Order 12866 (as discussed 
above), nor is it likely to have a significant adverse effect on the 
supply, distribution, or use of energy.

List of Subjects in 43 CFR Part 4, Subpart D

    Administrative practice and procedure, Estates, Hearing and appeal 
procedures, Indians, Probate.

    Dated: December 17, 2001.
P. Lynn Scarlett,
Assistant Secretary--Policy, Management and Budget.


    For the reasons stated in the preamble, the Department of the 
Interior, Office of Hearings and Appeals, amends 43 CFR part 4, subpart 
D as follows:

    1. The authority citation for part 4, subpart D continues to read 
as follows:

    Authority: Secs. 1, 2, 36 Stat. 855, as amended, 856, as 
amended, sec. 1, 38 Stat. 586, 42 Stat. 1185, as amended, secs. 1, 
2, 56 Stat. 1021, 1022; R.S. 463, 465; 5 U.S.C. 301; 25 U.S.C. secs. 
2, 9, 372, 373, 374, 373a, 373b, 410; 100 Stat. 61, as amended by 
101 Stat. 886 and 101 Stat. 1433, 25 U.S.C. 331 note.

    2. Revise Secs. 4.200 through 4.323 to read as follows:

Scope of Regulations; Definitions; General Authority of OHA 
Deciding Officials


Sec. 4.200  Scope of regulations.

    Included in Secs. 4.200 through 4.202 are general rules applicable 
to all proceedings in subpart D of this part. Included in Secs. 4.203 
through 4.282 and Secs. 4.310 through 4.323 are procedural rules 
applicable to the settlement of trust estates of deceased Indians who 
die possessed of trust property; however, these rules do not apply to 
the restricted property of deceased Indians of the Five Civilized 
Tribes, deceased Osage Indians, and members of any tribe organized 
under 25 U.S.C. 476, to the extent that the constitution, by-laws or 
charter of each tribe may be inconsistent with this subpart. Included 
within Secs. 4.300 through 4.308 are supplemental procedural rules 
applicable to determinations as to tribal purchase of certain property 
interests of decedents under special laws applicable to particular 
tribes. Included within Secs. 4.330 through 4.340 are procedural rules 
applicable to appeals to the Board of Indian Appeals from 
administrative actions or decisions issued by the Bureau of Indian 
Affairs as set forth in Sec. 4.330. Except as limited by the provisions 
herein, the rules in subparts A and B of this part apply to these 
proceedings.


Sec. 4.201  Definitions.

    As used in this subpart:
    Agency means the agency office or any other designated office in 
BIA having jurisdiction over trust or restricted property and money. 
This term also means any office of a tribe which has contracted or 
compacted the BIA probate function under 25 U.S.C. 450f or 458cc.
    Attorney decision maker means an attorney with BIA who reviews a 
probate package, determines heirs, approves wills and beneficiaries of 
the will, determines creditors' claims, and issues a written decision 
to the extent authorized by 25 CFR part 15.
    Beneficiary means any individual who receives trust or restricted 
property or money in a decedent's will.
    BIA means the Bureau of Indian Affairs within the Department of the 
Interior.
    BIA deciding official means the official with the delegated 
authority to make a decision on a probate matter pursuant to 25 CFR 
part 15, and may include a BIA regional director, agency 
superintendent, field representative, or attorney decision maker.
    Board means the Board of Indian Appeals in the Office of Hearings 
and Appeals, Office of the Secretary, authorized by the Secretary to 
hear, consider, and determine finally for the Department appeals taken 
by aggrieved parties from actions by OHA deciding officials on 
petitions for rehearing or reopening, and allowance of attorney fees, 
and from actions of BIA officials as provided in Sec. 4.1(b)(2).
    Child or children includes an adopted child or children.
    Commissioner includes the Deputy Commissioner of Indian Affairs and 
his or her authorized representatives.
    Day means a calendar day, unless otherwise stated.
    Decedent means a person who is deceased.
    Department means the Department of the Interior.
    Estate means the trust cash assets and restricted or trust property 
owned by the decedent at the time of his or her death.

[[Page 67657]]

    Heir means any individual who receives trust or restricted property 
or money from a decedent in an intestate proceeding.
    IIM account means funds held in an individual Indian monies account 
by OTFM or a tribe performing this function under a contract or 
compact.
    Intestate means the decedent died without a will.
    Minor means an individual who has not reached the age of majority 
as defined by the applicable tribal or state law.
    OHA deciding official means an employee of the Office of Hearings 
and Appeals with the authority to make a decision on a probate matter 
pursuant to this subpart. The OHA deciding official may be either an 
administrative law judge appointed pursuant to the Administrative 
Procedure Act, 5 U.S.C. 3105, or an Indian probate judge.
    OTFM means the Office of Trust Funds Management within the Office 
of the Special Trustee for American Indians, Department of the 
Interior, or its authorized representative.
    Party in interest means any presumptive or actual heir, any 
beneficiary under a will, any party asserting a claim against a 
deceased Indian's estate, and any Tribe having a statutory option to 
purchase interests of a decedent.
    Probate means the legal process by which applicable tribal law, 
state law, or federal law that affects the distribution of the 
decedent's estate is applied to:
    (1) Determine the heirs,
    (2) Approve wills and determine beneficiaries, and
    (3) Transfer any funds or property held in trust by the Secretary 
for a decedent, or any restricted property of the decedent, to the 
heirs, beneficiaries, or other persons or entities.
    Probate specialist means a BIA or tribal employee who is trained in 
Indian probate matters.
    Restricted property means real or personal property held by an 
Indian which he or she cannot alienate or encumber without the consent 
of the Secretary or his or her authorized representative. In this 
subpart, restricted property is treated as if it were trust property. 
Except with respect to Sec. 4.200, the term ``restricted property'' as 
used in this subpart does not include the restricted lands of the Five 
Civilized Tribes or Osage Tribe of Indians.
    Secretary means the Secretary of the Interior or his or her 
authorized representative.
    Solicitor means the Solicitor of the Department of the Interior or 
his or her authorized representative.
    Superintendent means the BIA Superintendent or other BIA officer 
having jurisdiction over an estate, including area field 
representatives or one holding equivalent authority.
    Testate means the decedent executed a will before his or her death.
    Trust property means real or personal property, or an interest 
therein, which the United States holds in trust for the benefit of an 
individual Indian.
    Will or last will and testament means a written testamentary 
document, including any properly executed written changes, called 
codicils, which was signed by the decedent and was attested by two 
disinterested adult witnesses, that states who will receive the 
decedent's trust or restricted property.


Sec. 4.202  General authority of OHA deciding officials.

    An OHA deciding official will, except as otherwise provided in 
Sec. 4.205(b) and 25 CFR 15.203 and 15.206, determine the heirs of any 
Indian who dies intestate possessed of trust property; approve or 
disapprove the will of a deceased Indian disposing of trust property; 
accept or reject any full or partial renunciation of interest in both 
testate and intestate proceedings; allow or disallow creditors' claims 
against the estate of a deceased Indian; and decree the distribution of 
trust property to heirs and devisees, including the partial 
distribution to known heirs or devisees where one or more potential 
heirs or devisees are missing but not presumed dead, after attributing 
to and setting aside for such missing person or persons the share or 
shares such person or persons would be entitled to if living. An OHA 
deciding official will determine the right of a tribe to take any 
inherited interest and the fair market value of the interest taken in 
appropriate cases as provided by statute. He or she will review each 
case de novo, hold hearings as necessary or appropriate, and issue 
decisions in matters appealed from decisions of BIA deciding officials. 
Administrative law judges will also hold hearings and issue recommended 
decisions in matters referred to them by the Board in the Board's 
consideration of appeals from administrative actions of BIA officials.

Determination of Heirs; Approval of Wills; Settlement of Indian 
Trust Estates


Sec. 4.203  Determination as to nonexistent persons and other 
irregularities of allotments.

    (a) An OHA deciding official will hear and determine whether trust 
patents covering allotments of land were issued to nonexistent persons, 
and whether more than one trust patent covering allotments of land had 
been issued to the same person under different names and numbers or 
through other errors in identification.
    (b) If an OHA deciding official determines under paragraph (a) of 
this section that a trust patent issued to an existing person and/or 
that separate persons received the allotments under consideration and 
any one of them is deceased, without having had his or her estate 
probated, the OHA deciding official must proceed as provided in 
Sec. 4.202.
    (c) If an OHA deciding official determines under paragraph (a) of 
this section that a person did not exist or that more than one 
allotment was issued to the same person, the OHA deciding official must 
issue a decision to that effect, giving notice thereof to parties in 
interest as provided in Sec. 4.240(b).


Sec. 4.204  Presumption of death.

    (a) An OHA deciding official will receive evidence on and determine 
the issue of whether any person, by reason of unexplained absence, is 
to be presumed dead.
    (b) If an OHA deciding official determines that an Indian person 
possessed of trust property is to be presumed dead, the OHA deciding 
official must proceed as provided in Sec. 4.202.


Sec. 4.205  Escheat.

    An OHA deciding official will determine whether any Indian holder 
of trust property died intestate without heirs and--
    (a) With respect to trust property other than on the public domain, 
order the escheat of such property in accordance with 25 U.S.C. 373a.
    (b) With respect to trust property on the public domain, submit to 
the Board of Indian Appeals the records thereon, together with 
recommendations as to the disposition of said property under 25 U.S.C. 
373b.


Sec. 4.206  Determinations of nationality or citizenship and status 
affecting character of land titles.

    In cases where the right and duty of the Government to hold 
property in trust depends thereon, an OHA deciding official will 
determine the nationality or citizenship, or the Indian or non-Indian 
status, of heirs or devisees, or whether Indian heirs or devisees of 
U.S. citizenship are of a class as to whose property the Government's 
supervision and trusteeship have been terminated in current probate 
proceedings or in completed estates after reopening such estates under, 
but without regard to the 3-year limit set forth in Sec. 4.242.

[[Page 67658]]

Sec. 4.207  Compromise settlement.

    (a) If during the course of the probate of an estate it develops 
that an issue between contending parties is of such nature as to be 
substantial, and it further appears that such issue may be settled by 
agreement preferably in writing by the parties in interest to their 
advantage and to the advantage of the United States, such an agreement 
may be approved by the OHA deciding official upon findings that:
    (1) All parties to the compromise are fully advised as to all 
material facts;
    (2) All parties to the compromise are fully cognizant of the effect 
of the compromise upon their rights; and
    (3) It is in the best interest of the parties to settle rather than 
to continue litigation.
    (b) In considering the proposed settlement, the OHA deciding 
official may take and receive evidence as to the respective values of 
specific items of property. Superintendents and irrigation project 
engineers must supply all necessary information concerning any 
liability or lien for payment of irrigation construction and of 
irrigation operation and maintenance charges.
    (c) Upon an affirmative determination as to all three points 
specified, the OHA deciding official will issue such final order of 
distribution in the settlement of the estate as is necessary to approve 
the same and to accomplish the purpose and spirit of the settlement. 
Such order will be construed as any other order of distribution 
establishing title in heirs and devisees and will not be construed as a 
partition or sale transaction within the provisions of 25 CFR part 152. 
If land titles are to be transferred, the necessary deeds must be 
prepared and executed at the earliest possible date. Upon failure or 
refusal of any party in interest to execute and deliver any deed 
necessary to accomplish the settlement, the OHA deciding official will 
settle the issues and enter an order as if no agreement had been 
attempted.
    (d) OHA deciding officials are authorized to approve all deeds or 
conveyances necessary to accomplish a settlement under this section.


Sec. 4.208  Renunciation of interest.

    Any person 21 years or older, whether of Indian descent or not, may 
renounce intestate succession or devise of trust or restricted 
property, wholly or partially (including the retention of a life 
estate), by filing a signed and acknowledged declaration of such 
renunciation with the OHA deciding official prior to entry of the final 
order by the OHA deciding official. No interest in the property so 
renounced is considered to have vested in the heir or devisee and the 
renunciation is not considered a transfer by gift of the property 
renounced, but the property so renounced passes as if the person 
renouncing the interest has predeceased the decedent. A renunciation 
filed in accordance herewith will be considered accepted when 
implemented in an order by an OHA deciding official and will be 
irrevocable thereafter. All disclaimers or renunciations heretofore 
filed with and implemented in an order by an OHA deciding official are 
hereby ratified as valid and effective.

Commencement of Probate Proceedings


Sec. 4.210  Commencement of probate.

    The probate of a trust estate before an OHA deciding official will 
commence when the probate specialist or BIA deciding official files 
with the OHA deciding official all information shown in the records 
relative to the family of the deceased and his or her property. The 
information must include the complete probate package described in 25 
CFR 15.104 and 15.202 and any other relevant information. The agency or 
BIA deciding official must promptly transmit to the OHA deciding 
official any creditor's or other claims that are received after the 
case is transmitted to the OHA deciding official, for a determination 
of their timeliness, validity, priority, and allowance under 
Secs. 4.250 and 4.251.


Sec. 4.211  Notice.

    (a) An OHA deciding official may receive and hear evidence at a 
hearing to determine the heirs of a deceased Indian or probate his or 
her will only after the OHA deciding official has caused notice of the 
time and place of the hearing to be posted at least 20 days prior to 
the hearing date in five or more conspicuous places in the vicinity of 
the designated place of hearing, and the OHA deciding official may 
cause postings in such other places and reservations as he or she deems 
appropriate. A certificate showing the date and place of posting must 
be signed by the person or official who performs the act.
    (b) The OHA deciding official must serve or cause to be served a 
copy of the notice on each party in interest known to the OHA deciding 
official and on each attesting witness if a will is offered:
    (1) By personal service in sufficient time in advance of the date 
of the hearing to enable the person served to attend the hearing; or
    (2) By mail, addressed to the person at his or her last known 
address, in sufficient time in advance of the date of the hearing to 
enable the addressee served to attend the hearing. The OHA deciding 
official must cause a certificate, as to the date and manner of such 
mailing, to be made on the record copy of the notice.
    (c) All parties in interest, known and unknown, including 
creditors, will be bound by the decision based on such hearing if they 
lived within the vicinity of any place of posting during the posting 
period, whether they had actual notice of the hearing or not. As to 
those not within the vicinity of the place of posting, a rebuttable 
presumption of actual notice will arise upon the mailing of such notice 
at a reasonable time prior to the hearing, unless the said notice is 
returned by the postal service to the office of the OHA deciding 
official unclaimed by the addressee.
    (d) Tribes to be charged with notice of death and probate. When a 
record reveals that a Tribe has a statutory option to purchase 
interests of a decedent, such Tribe must be notified of the pendency of 
a proceeding by the the OHA deciding official having probate 
jurisdiction in such proceeding, and the certificate of mailing of 
notice of probate hearing or of a final decision in probate to the 
Tribe at its record address will be conclusive evidence for all 
purposes that the Tribe had notice of decedent's death and notice of 
the pendency of the probate proceedings.


Sec. 4.212  Contents of notice.

    (a) In the notice of hearing, the OHA deciding official must 
specify that at the stated time and place the OHA deciding official 
will take testimony to determine the heirs of the deceased person 
(naming him or her) and, if a will is offered for probate, testimony as 
to the validity of the will describing it by date. The notice must name 
all known presumptive heirs of the decedent, and, if a will is offered 
for probate, the beneficiaries under such will and the attesting 
witnesses to the will. The notice must cite this subpart as the 
authority and jurisdiction for holding the hearing, and must inform all 
persons having an interest in the estate of the decedent, including 
persons having claims or accounts against the estate, to be present at 
the hearing or their rights may be lost by default.
    (b) The notice must state further that the hearing may be continued 
to another time and place. A continuance may be announced either at the 
original hearing by the OHA deciding official or by an appropriate 
notice posted at the announced place of hearing on or prior to the 
announced hearing date and hour.

[[Page 67659]]

Depositions, Discovery, and Prehearing Conference


Sec. 4.220  Production of documents for inspection and copying.

    (a) At any stage of the proceeding prior to the conclusion of the 
hearing, a party in interest may make a written demand, a copy to be 
filed with the OHA deciding official, upon any other party to the 
proceeding or upon a custodian of records on Indians or their trust 
property, to produce for inspection and copying or photographing, any 
documents, papers, records, letters, photographs, or other tangible 
things not privileged, relevant to the issues which are in the other 
party's or custodian's possession, custody, or control. Upon failure of 
prompt compliance, the OHA deciding official may issue an appropriate 
order upon a petition filed by the requesting party. At any time prior 
to closing the record, the OHA deciding official upon his or her own 
motion, after notice to all parties, may issue an order to any party in 
interest or custodian of records for the production of material or 
information not privileged, and relevant to the issues.
    (b) Custodians of official records will furnish and reproduce 
documents, or permit their reproduction, in accordance with the rules 
governing the custody and control thereof.


Sec. 4.221  Depositions.

    (a) Stipulation. Depositions may be taken upon stipulation of the 
parties. Failing an agreement therefor, depositions may be ordered 
under paragraphs (b) and (c) of this section.
    (b) Application for taking deposition. When a party in interest 
files a written application, the OHA deciding official may at any time 
thereafter 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 be in writing and 
must set forth:
    (1) The name and address of the proposed deponent;
    (2) The name and address of that person, qualified under paragraph 
(d) of this section to take depositions, before whom the proposed 
examination is to be made;
    (3) The proposed time and place of the examination, which must be 
at least 20 days after the date of the filing of the application; and
    (4) The reasons why such deposition should be taken.
    (c) Order for taking deposition. If after examination of the 
application the OHA deciding official determines that the deposition 
should be taken, he or she will order its taking. The order must be 
served upon all parties in interest and must state:
    (1) The name of the deponent;
    (2) The time and place of the examination which must not be less 
than 15 days after the date of the order except as stipulated 
otherwise; and
    (3) The name and address of the officer before whom the examination 
is to be made. The officer and the time and place need not be the same 
as those requested in the application.
    (d) Qualifications of officer. The deponent must appear before the 
OHA deciding official 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.
    (e) Procedure on examination. The deponent must be examined under 
oath or affirmation and must be subject to cross-examination. The 
testimony of the deponent must be recorded by the officer or someone in 
the officer's presence. An applicant who requests the taking of a 
person's deposition must make his or her own arrangements for payment 
of any costs incurred.
    (f) Submission to witness; changes; signing. When the testimony is 
fully transcribed, the deposition must be submitted to the deponent for 
examination and must be read to or by him or her, unless such 
examination and reading are waived by the deponent or by all other 
parties in interest. Any changes in form or substance which the 
deponent desires to make must be entered upon the deposition by the 
officer with a statement of the reasons given by the deponent for 
making them. The deposition must then be signed by the deponent, unless 
the parties in interest by stipulation waive the signing, or the 
witness is ill or cannot be found or refuses to sign. If the deposition 
is not signed by the deponent, the officer must sign it and state on 
the record the fact of the waiver, or of the illness or absence of the 
deponent or the fact of the refusal to sign together with the reason, 
if any, given therefor; the deposition may then be used as fully as 
though signed, unless the OHA deciding official holds that the reason 
given for refusal to sign requires rejection of the deposition in whole 
or in part.
    (g) Certificates by officer. The officer must certify on the 
deposition that the deponent was duly sworn by the officer and that the 
deposition is a true record of the deponent's testimony. The officer 
must then securely seal the deposition, together with two copies 
thereof, in an envelope and must personally deliver or mail the same by 
certified or registered mail to the OHA deciding official.
    (h) Use of depositions. A deposition ordered and taken in accord 
with the provisions of this section may be used in a hearing if the OHA 
deciding official finds that the witness is absent and that his or her 
presence cannot be readily obtained, that the evidence is otherwise 
admissible, and that circumstances exist that make it desirable in the 
interest of fairness to allow the deposition to be used. If a 
deposition has been taken, and the party in interest on whose 
application it was taken refuses to offer the deposition, or any part 
thereof, in evidence, any other party in interest or the OHA deciding 
official may introduce the deposition or any portion thereof on which 
he or she wishes to rely.


Sec. 4.222  Written interrogatories; admission of facts and documents.

    At any time prior to a hearing and in sufficient time to permit 
answers to be filed before the hearing, a party in interest may serve 
upon any other party in interest written interrogatories and requests 
for admission of facts and documents. A copy of such interrogatories 
and requests must be filed with the OHA deciding official. Such 
interrogatories and requests for admission must be drawn with the 
purpose of defining the issues in dispute between the parties and 
facilitating the presentation of evidence at the hearing. Answers must 
be served upon the party propounding the written interrogatories or 
requesting the admission of facts and documents within 30 days from the 
date of service of such interrogatories or requests, or within such 
other period of time as may be agreed upon by the parties or prescribed 
by the OHA deciding official. A copy of the answer must be filed with 
the OHA deciding official. Within 10 days after written interrogatories 
are served upon a party, that party may serve cross-interrogatories for 
answer by the witness to be interrogated.


Sec. 4.223  Objections to and limitations on production of documents, 
depositions, and interrogatories.

    The OHA deciding official, upon motion timely made by any party in 
interest, proper notice, and good cause shown, may direct that 
proceedings under Secs. 4.220, 4.221, and 4.222 may be conducted only 
under, and in accordance with, such limitation as he or she deems 
necessary and appropriate as to documents, time, place, and scope. The 
OHA deciding official may act on his or her own motion only if undue 
delay, dilatory tactics, and unreasonable

[[Page 67660]]

demands are made so as to delay the orderly progress of the proceeding 
or cause unacceptable hardship upon a party or witness.


Sec. 4.224  Failure to comply with orders.

    In the event of the failure of a party to comply with a request for 
the production of a document under Sec. 4.220; or on the failure of a 
party to appear for examination under Sec. 4.221 or on the failure of a 
party to respond to interrogatories or requests for admissions under 
Sec. 4.222; or on the failure of a party to comply with an order of the 
OHA deciding official issued under Sec. 4.223 without, in any of such 
events, showing an excuse or explanation satisfactory to the OHA 
deciding official for such failure, the OHA deciding official may:
    (a) Decide the fact or issue relating to the material requested to 
be produced, or the subject matter of the probable testimony, in 
accordance with the claims of the other party in interest or in 
accordance with other evidence available to the OHA deciding official; 
or
    (b) Make such other ruling as the OHA deciding official determines 
just and proper.


Sec. 4.225  Prehearing conference.

    The OHA deciding official may, upon his or her own motion or upon 
the request of any party in interest, call upon 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 
which will avoid unnecessary proof;
    (c) Limit the number of expert or other witnesses in avoidance of 
excessively cumulative evidence;
    (d) Effect possible agreement disposing of all or any of the issues 
in dispute; and
    (e) Resolve such other matters as may simplify and shorten the 
hearing.

Hearings


Sec. 4.230  Authority and duties of the OHA deciding official.

    The authority of the OHA deciding official in all hearings in 
estate proceedings includes, but is not limited to authority:
    (a) To administer oaths and affirmations;
    (b) To issue subpoenas under the provisions of 25 U.S.C. 374 upon 
his or her own initiative or within his or her discretion upon the 
request of any party in interest, to any person whose testimony he or 
she believes to be material to a hearing. Upon the failure or refusal 
of any person upon whom a subpoena has been served to appear at a 
hearing or to testify, the OHA deciding official may file a petition in 
the appropriate U.S. District Court for the issuance of an order 
requiring the appearance and testimony of the witness:
    (c) To permit any party in interest to cross-examine any witness;
    (d) To appoint a guardian ad litem to represent any minor or 
incompetent party in interest at hearings;
    (e) To rule upon offers of proof and receive evidence;
    (f) To take and cause depositions to be taken and to determine 
their scope; and
    (g) To otherwise regulate the course of the hearing and the conduct 
of witnesses, parties in interest, and attorneys at law appearing 
therein.


Sec. 4.231  Hearings.

    (a) All testimony in Indian probate hearings must be under oath and 
must be taken in public except in those circumstances which in the 
opinion of the OHA deciding official justify all but parties in 
interest to be excluded from the hearing.
    (b) The proceedings of hearings must be recorded verbatim.
    (c) The record must include a showing of the names of all parties 
in interest and of attorneys who attended such hearing.


Sec. 4.232  Evidence; form and admissibility.

    (a) Parties in interest may offer at a hearing such relevant 
evidence as they deem appropriate under the generally accepted rules of 
evidence of the State in which the evidence is taken, subject to the 
OHA deciding official's supervision as to the extent and manner of 
presentation of such evidence.
    (b) The OHA deciding official may admit letters or copies thereof, 
affidavits, or other evidence not ordinarily admissible under the 
generally accepted rules of evidence, the weight to be attached to 
evidence presented in any particular form being within the discretion 
of the OHA deciding official, taking into consideration all the 
circumstances of the particular case.
    (c) Stipulations of fact and stipulations of testimony that would 
be given by witnesses were such witnesses present, agreed upon by the 
parties in interest, may be used as evidence at the hearing.
    (d) The OHA deciding official may in any case require evidence in 
addition to that offered by the parties in interest.


Sec. 4.233  Proof of wills, codicils, and revocations.

    (a) Self-proved wills. A will executed as provided in Sec. 4.260 
may, at the time of its execution, be made self-proved, and testimony 
of the witnesses in the probate thereof may be made unnecessary by the 
affidavits of the testator and attesting witnesses, made before an 
officer authorized to administer oaths, such affidavits to be attached 
to such will and to be in form and contents substantially as follows:

State of ____________ County of ____________ ss. I, ____________, being 
first duly sworn, on oath, depose and say: That I am an ____ (enrolled 
or unenrolled) member of the ____________ Tribe of Indians in the State 
of ____________; that on the ____ day of ______, 19____, I requested 
____________ to prepare a will for me; that the attached will was 
prepared and I requested ____________ and ____________ to act as 
witnesses thereto; that I declared to said witnesses that said 
instrument was my last will and testament; that I signed said will in 
the presence of both witnesses and they signed the same as witnesses in 
my presence and in the presence of each other; that said will was read 
and explained to me (or read by me), after being prepared and before I 
signed it and it clearly and accurately expresses my wishes; and that I 
willingly made and executed said will as my free and voluntary act and 
deed for the purposes therein expressed.

Testator/Testatrix

We, ______________ and______________, each being first duly sworn, on 
oath, depose and state: That on the ____day of ______, 19____, ________ 
a member of the ________ Tribe of Indians of the State of ________, 
published and declared the attached instrument to be his/her last will 
and testament, signed the same in the presence of both of us and 
requested both of us to sign the same as witnesses; that we, in 
compliance with his/her request, signed the same as witnesses in his/
her presence and in the presence of each other; that said testator/
testatrix was not acting under duress, menace, fraud, or undue 
influence of any person, so far as we could ascertain, and in our 
opinion was mentally capable of disposing of all his/her estate by 
will.
----------------------------------------------------------------------
Witness

----------------------------------------------------------------------
Witness

Subscribed and sworn to before me this______ day of______, 19____,by 
__________testator/testatrix, and by

[[Page 67661]]

__________and __________; attesting witnesses.

----------------------------------------------------------------------
----------------------------------------------------------------------
(Title)
If uncontested, a self-proved will may be approved and distribution 
ordered thereunder with or without the testimony of any attesting 
witness.

    (b) Self-proved codicils and revocations. A codicil to, or a 
revocation of, a will may be made self-proved in the same manner as 
provided in paragraph (a) of this section with respect to a will.
    (c) Will contest. If the approval of a will, codicil thereto, or 
revocation thereof 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. If none of the attesting witnesses 
resides in the reasonable vicinity of the place of hearing at the time 
appointed for proving the will, the OHA deciding official may admit the 
testimony of other witnesses to prove the testamentary capacity of the 
testator and the execution of the will and, as evidence of the 
execution, the OHA deciding official may admit proof of the handwriting 
of the testator and of the attesting witnesses, or of any of them. The 
provisions of Sec. 4.232 are applicable with respect to remaining 
issues.


Sec. 4.234  Witnesses, interpreters, and fees.

    Parties in interest who desire a witness to testify or an 
interpreter to serve at a hearing must make their own financial and 
other arrangements therefor, and subpoenas will be issued where 
necessary and proper. The OHA deciding official may call witness and 
interpreters and order payment out of the estate assets of per diem, 
mileage, and subsistence at a rate not to exceed that allowed to 
witnesses called in the U.S. District Courts. In hardship situations, 
the OHA deciding official may order payment of per diem and mileage for 
indispensable witnesses and interpreters called for the parties. In the 
order for payment he or she must specify whether such costs are to be 
allocated and charged against the interest of the party calling the 
witness or against the estate generally. Costs of administration so 
allowed will have a priority for payment greater than that for any 
creditor claims allowed. Upon receipt of such order, the Superintendent 
must immediately initiate payment of such sums from the estate account, 
or if such funds are insufficient, then out of funds as they are 
received in such account prior to closure of the estate, with the 
proviso that such costs must be paid in full with a later allocation 
against the interest of a party, if the OHA deciding official has so 
ordered.


Sec. 4.235  Supplemental hearings.

    After the matter has been submitted but prior to the time the OHA 
deciding official has rendered his or her decision, the OHA deciding 
official may upon his or her own motion or upon motion of any party in 
interest schedule a supplemental hearing if he or she deems it 
necessary. The notice must set forth the purpose of the supplemental 
hearing and must be served upon all parties in interest in the manner 
provided in Sec. 4.211. Where the need for such supplemental hearing 
becomes apparent during any hearing, the OHA deciding official may 
announce the time and place for such supplemental hearing to all those 
present and no further notice need be given. In that event the records 
must clearly show who was present at the time of the announcement.


Sec. 4.236  Record.

    (a) After the completion of the hearing, the OHA deciding official 
will make up the official record containing:
    (1) A copy of the posted public notice of hearing showing the 
posting certifications;
    (2) A copy of each notice served on interested parties with proof 
of mailing;
    (3) The record of the evidence received at the hearing, including 
any transcript made of the testimony;
    (4) Claims filed against the estate;
    (5) Will and codicils, if any;
    (6) Inventories and valuations of the estate;
    (7) Pleadings and briefs filed;
    (8) Special or interim orders;
    (9) Data for heirship finding and family history;
    (10) The decision and the notices thereof; and
    (11) Any other material or documents deemed material by the OHA 
deciding official.
    (b) The OHA deciding official must lodge the original record with 
the designated Land Titles and Records Office in accordance with 25 CFR 
part 150. A duplicate copy must be lodged with the Superintendent 
originating the probate. A partial record may also be furnished to the 
Superintendents of other affected agencies. In those cases in which a 
hearing transcript has not been prepared, the verbatim recording of the 
hearing must be retained in the office of the OHA deciding official 
issuing the decision until the time allowed for rehearing or appeal has 
expired. In cases in which a transcript is not prepared, the original 
record returned to the Land Titles and Records Office must contain a 
statement indicating no transcript was prepared.

Decisions


Sec. 4.240  Decision of the OHA deciding official and notice thereof.

    (a) The OHA deciding official must decide the issues of fact and 
law involved in the proceedings and must incorporate the following in 
his or her decision:
    (1) In all cases, the names, birth dates, relationships to the 
decedent, and shares of heirs with citations to the law of descent and 
distribution in accordance with which the decision is made; or the fact 
that the decedent died leaving no legal heirs.
    (2) In testate cases, (i) approval or disapproval of the will with 
construction of its provisions, (ii) the names and relationship to the 
testator of all beneficiaries and a description of the property which 
each is to receive;
    (3) Allowance or disallowance of claims against the estate;
    (4) Whether heirs or devisees are non-Indian, exclusively alien 
Indians, or Indians whose property is not subject to Federal 
supervision.
    (5) A determination of any rights of dower, curtesy or homestead 
which may constitute a burden upon the interest of the heirs.
    (b) When the OHA deciding official issues a decision, he or she 
must issue a notice thereof to all parties who have or claim any 
interest in the estate and must mail a copy of said notice, together 
with a copy of the decision to the Superintendent and to each party in 
interest simultaneously. The decision will not become final and no 
distribution may be made thereunder until the expiration of the 60 days 
allowed for the filing of a petition for rehearing by aggrieved parties 
as provided in Sec. 4.241.


Sec. 4.241  Rehearing.

    (a) Any person aggrieved by the decision of the OHA deciding 
official may, within 60 days after the date on which notice of the 
decision is mailed to the interested parties, file with the OHA 
deciding official a written petition for rehearing. Such petition must 
be under oath and must state specifically and concisely the grounds 
upon which it is based. If the petition is based on newly-discovered 
evidence, it must be accompanied by affidavits or declarations of 
witnesses stating fully what the new testimony is to be. It must also 
state justifiable reasons for the failure to discover and present that 
evidence, tendered as new, at the hearings held prior to the issuance 
of the decision. The OHA deciding official,

[[Page 67662]]

upon receiving a petition for rehearing, must promptly forward a copy 
to the Superintendent. The Superintendent must not initiate payment of 
claims or distribute the estate while such petition is pending, unless 
otherwise directed by the OHA deciding official.
    (b) If proper grounds are not shown, or if the petition is not 
filed within the time prescribed in paragraph (a) of this section, the 
OHA deciding official will issue an order denying the petition and must 
set forth therein his or her reasons therefor. The OHA deciding 
official must furnish copies of such order to the petitioner, the 
Superintendent, and the parties in interest.
    (c) If the petition appears to show merit, the OHA deciding 
official must 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. The OHA deciding official 
must allow all persons served a reasonable, specified time in which to 
submit answers or legal briefs in opposition to the petition. The OHA 
deciding official will then reconsider, with or without hearing as he 
or she may determine, the issues raised in the petition; he or she may 
adhere to the former decision, modify or vacate it, or make such 
further order as is warranted.
    (d) Upon entry of a final order the OHA deciding official must 
lodge the complete record relating to the petition with the title plant 
designated under Sec. 4.236(b), and furnish a duplicate record thereof 
to the Superintendent.
    (e) Successive petitions for rehearing are not permitted, and 
except for the issuance of necessary orders nunc pro tunc to correct 
clerical errors in the decision, the jurisdiction of the OHA deciding 
official terminates upon the issuance of a decision finally disposing 
of a petition for rehearing. Nothing herein will be construed as a bar 
to the remand of a case by the Board for further hearing or rehearing 
after appeal.
    (f) At the time the final decision is entered following the filing 
of a petition for rehearing, the OHA deciding official must direct a 
notice of such action with a copy of the decision to the Superintendent 
and to the parties in interest and must mail the same by regular mail 
to the said parties at their addresses of record.
    (g) No distribution may be made under such order for a period of 60 
days following the mailing of a notice of decision pending the filing 
of a notice of appeal by an aggrieved party as herein provided.


Sec. 4.242  Reopening.

    (a) Within a period of 3 years from the date of a final decision 
issued by an OHA deciding official or by the Board but not thereafter 
except as provided in Secs. 4.203 and 4.206, any person claiming an 
interest in the estate who had no actual notice of the original 
proceedings and who was not on the reservation or otherwise in the 
vicinity at any time while the public notices of the hearing were 
posted may file a petition in writing for reopening of the case. Any 
such petition must be addressed to the OHA deciding official and filed 
at his or her office. A copy of such petition must be furnished also by 
the petitioner to the Superintendent. 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.
    (b) If the OHA deciding official finds that proper grounds are not 
shown, he or she will issue an order denying the petition and setting 
forth the reasons for such denial. Copies of the OHA deciding 
official's decision must be mailed to the petitioner, the 
Superintendent, and to those persons who share in the estate.
    (c) If the petition appears to show merit, the OHA deciding 
official must cause copies of the petition and all papers filed by the 
petitioner to be served on those persons whose interest in the estate 
might be adversely affected by the granting of the petition. Such 
persons may resist such petition by filing answers, cross-petitions, or 
briefs. Such filings must be made within such reasonable time periods 
as the OHA deciding official specifies. The OHA deciding official will 
then reconsider, with or without hearing as he or she may determine, 
prior actions taken in the case and may either adhere to, modify, or 
vacate the original decision. Copies of the OHA deciding official's 
decision must be mailed to the petitioner, to all persons who received 
copies of the petition, and to the Superintendent.
    (d) To prevent manifest error an OHA deciding official may reopen a 
case within a period of 3 years from the date of the final decision, 
after due notice on his or her own motion, or on petition of a BIA 
officer. Copies of the OHA deciding official's decision must be mailed 
to all parties in interest and to the Superintendent.
    (e) The OHA deciding official may suspend distribution of the 
estate or the income therefrom during the pendency of reopening 
proceedings by order directed to the Superintendent.
    (f) The OHA deciding official must lodge the record made in 
disposing of a reopening petition with the title plant designated under 
Sec. 4.236(b) and must furnish a duplicate record thereof to the 
Superintendent.
    (g) No distribution may be made under a decision issued pursuant to 
paragraph (b), (c), or (d) of this section for a period of 60 days 
following the mailing of the copy of the decision as therein provided, 
pending the filing of a notice of appeal by an aggrieved party.
    (h) If a petition for reopening is filed more than 3 years after 
the entry of a final decision in a probate, it will be allowed only 
upon a showing that a manifest injustice will occur; that a reasonable 
possibility exists for correction of the error; that the petitioner had 
no actual notice of the original proceedings; and that petitioner was 
not on the reservation or otherwise in the vicinity at any time while 
the public notices were posted. A denial of such petition may be made 
by the OHA deciding official on the basis of the petition and available 
BIA records. No such petition will be granted, however, unless the OHA 
deciding official has caused copies of the petition and all other 
papers filed by the petitioner to be served on those persons whose 
interest in the estate might be adversely affected by the granting of 
the petition, and after allowing such persons an opportunity to resist 
such petition by filing answers, cross petitions or briefs as provided 
in paragraph (c) of this section.

Appeals From Decisions of BIA Deciding Officials


Sec. 4.243  Appeals from BIA.

    Any appeal filed pursuant to 25 CFR part 15, subpart E, will be 
referred to an OHA deciding official pursuant to Sec. 4.210. The OHA 
deciding official will review the merits of the case de novo and 
conduct a hearing as necessary or appropriate pursuant to the 
regulations in this subpart. The BIA deciding official must forward to 
the OHA deciding official all documents and other evidence upon which 
the BIA deciding official's decision was based.

Claims


Sec. 4.250  Filing and proof of creditor claims; limitations.

    (a) All claims against the estate of a deceased Indian must be 
filed with the agency
    (i) Within 60 days from the date BIA receives a certified copy of 
the death certificate or other verification of the decedent's death 
under 25 CFR 15.101 or
    (ii) Within 20 days from the date the creditor is chargeable with 
notice of the

[[Page 67663]]

decedent's death, whichever of these dates is later.
    (b) No claim will be paid from trust or restricted assets when the 
OHA deciding official is aware that the decedent's non-trust estate may 
be available to pay the claim.
    (c) All claims must be filed in triplicate, itemized in detail as 
to dates and amounts of charges for purchases or services and dates and 
amounts of payments on account. Such claims must show the names and 
addresses of all parties in addition to the decedent from whom payment 
might be sought. Each claim must be supplemented by an affidavit, in 
triplicate, of the claimant or someone in his or her behalf that the 
amount claimed is justly due from the decedent, that no payments have 
been made on the account which are not credited thereon as shown by the 
itemized statement, and that there are no offsets to the knowledge of 
the claimant.
    (d) 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.
    (e) A claim based on a written or oral contract, express or 
implied, where the claim for relief has existed for such a period as to 
be barred by the State laws at date of decedent's death, cannot be 
allowed.
    (f) Claims sounding in tort not reduced to judgment in a court of 
competent jurisdiction, and other unliquidated claims not properly 
within the jurisdiction of a probate forum, may be barred from 
consideration by an interim order from the OHA deciding official.
    (g) Claims of a State or any of its political subdivisions on 
account of social security or old-age assistance payments will not be 
allowed.


Sec. 4.251  Priority of claims.

    (a) Upon motion of the Superintendent or a party in interest, the 
OHA deciding official may authorize payment of the costs of 
administering the estate as they arise and prior to the allowance of 
any claims against the estate.
    (b) After the costs of administration, the OHA deciding official 
may authorize payment of priority claims as follows:
    (1) Claims for funeral expenses (including the cemetery marker);
    (2) Claims for medical expenses for the last illness;
    (3) Claims for nursing home or other care facility expenses;
    (4) Claims of an Indian tribe; and
    (5) Claims reduced to judgment by a court of competent 
jurisdiction.
    (c) After the priority claims, the OHA deciding official may 
authorize payment of all remaining claims, referred to as general 
claims.
    (d) The OHA deciding official has the 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.
    (1) If a claim is reduced, the OHA deciding official will order 
payment only of the reduced amount.
    (2) An OHA deciding official may reduce or disallow both priority 
claims and general claims.
    (e) If, as of the date of the hearing, there is not enough money in 
the IIM account to pay all claims, the OHA deciding official will order 
payment of allowed priority claims first, either in the order 
identified in paragraph (b) of this section or on a pro rata (reduced) 
basis.
    (f) If, as of the date of the hearing, less than $1,000 remains in 
the IIM account after payment of priority claims is ordered, the 
general claims may be ordered paid on a pro rata basis or disallowed in 
their entirety.
    (g) The unpaid balance of any claims will not be enforceable 
against the estate after the estate is closed.
    (h) Interest or penalties charged against either priority or 
general claims after the date of death will not be paid.


Sec. 4.252  Property subject to claims.

    Claims are payable from income from the lands remaining in trust. 
Further, except as prohibited by law, all trust moneys of the deceased 
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, devisee, or 
legatee remains in or passes out of trust.

Wills


Sec. 4.260  Making of a will; review as to form; revocation.

    (a) An Indian 18 years of age or over and of testamentary capacity, 
who has any right, title, or interest in trust property, may dispose of 
such property by a will executed in writing and attested by two 
disinterested adult witnesses.
    (b) When an Indian executes a will and submits the same to the 
Superintendent, the Superintendent must forward it to the Office of the 
Solicitor for examination as to adequacy of form, and for submission by 
the Office of the Solicitor to the Superintendent of any appropriate 
comments. The will, codicil, or any replacement or copy thereof, may be 
retained by the Superintendent at the request of the testator or 
testatrix for safekeeping. A will must be held in absolute confidence, 
and no person other than the testator may admit its existence or 
divulge its contents prior to the death of the testator.
    (c) The testator may, at any time during his or her lifetime, 
revoke his or her will by a subsequent will or other writing executed 
with the same formalities as are required in the case of the execution 
of a will, or by physically destroying the will with the intention of 
revoking it. No will that is subject to the regulations of this subpart 
will be deemed to be revoked by operation of the law of any State.


Sec. 4.261  Anti-lapse provisions.

    When an Indian testator devises or bequeaths trust property to any 
of his or her grandparents or to the lineal descendant of a 
grandparent, and the devisee or legatee dies before the testator 
leaving lineal descendants, such descendants will take the right, 
title, or interest so given by the will per stirpes. Relationship by 
adoption is equivalent to relationship by blood.


Sec. 4.262  Felonious taking of testator's life.

    No person who has been finally convicted of feloniously causing the 
death or taking the life of, or procuring another person to take the 
life of, the testator, may take directly or indirectly any devise or 
legacy under deceased's will. All right, title, and interest existing 
in such a situation will vest and be determined as if the person 
convicted never existed, notwithstanding Sec. 4.261.

Custody and Distribution of Estates


Sec. 4.270  Custody and control of trust estates.

    The Superintendent may assume custody or control of all tangible 
trust personal property of a deceased Indian, and the Superintendent 
may take such action, including sale thereof, as in his or her judgment 
is necessary for the benefit of the estate, the heirs, legatees, and 
devisees, pending entry of the decision provided for in 25 CFR 15.311 
or in Secs. 4.240, 4.241, or 4.312. All expenses, including expenses of 
roundup, branding, care, and feeding of livestock, are chargeable 
against the estate and may be paid from those funds of the deceased 
that are under the Department's control, or from the proceeds of a sale 
of the property or a part thereof. If an OHA deciding official or BIA 
deciding official has been assigned to adjudicate the estate, his or 
her approval is required prior to such payment.

[[Page 67664]]

Sec. 4.271  Omitted property.

    (a) When, subsequent to the issuance of a decision under Sec. 4.240 
or Sec. 4.312, it is found that trust property or interest therein 
belonging to a decedent has not been included in the inventory, the 
inventory can be modified to include such omitted property for 
distribution pursuant to the original decision. Such modification may 
be made either administratively by the Commissioner or by a 
modification order prepared by him or her for the approval and 
signature of the OHA deciding official. Copies of such modifications 
must be furnished to the Superintendent 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, the Commissioner must 
notify the OHA deciding official who will proceed to hold a hearing if 
necessary and will issue a decision under Sec. 4.240. The record of any 
such proceeding must be lodged with the title plant designated under 
Sec. 4.236(b).


Sec. 4.272  Improperly included property.

    (a) When, subsequent to a decision under Sec. 4.240 or Sec. 4.312, 
it is found that property has been improperly included in the inventory 
of an estate, the inventory must be modified to eliminate such 
property. A petition for modification may be filed by the 
Superintendent of the Agency where the property is located, or by any 
party in interest.
    (b) The OHA deciding official will review the record of the title 
upon which the modification is to be based, and enter an appropriate 
decision. If the decision is entered without a hearing, the OHA 
deciding official must give notice of his or her action to all parties 
whose rights are adversely affected allowing them 60 days in which to 
show cause why the decision should not then become final.
    (c) Where appropriate the OHA deciding official may conduct a 
hearing at any stage of the modification proceeding. Any such hearing 
must be scheduled and conducted in accordance with the rules of this 
subpart. The OHA deciding official will enter a final decision based on 
his or her findings, modifying or refusing to modify the property 
inventory, and his or her decision will become final at the end of 60 
days from the date it is mailed unless a notice of appeal is filed by 
an aggrieved party within such period. Notice of entry of the decision 
must be given in accordance with Sec. 4.240(b).
    (d) A party aggrieved by the OHA deciding official's decision may 
appeal to the Board pursuant to the procedures in Secs. 4.310 through 
4.323.
    (e) The record of all proceedings must be lodged with the title 
plant designated under Sec. 4.236(b).


Sec. 4.273  Distribution of estates.

    (a) Seventy-five days after a final order has been issued, unless 
the Superintendent has received a copy of a petition for rehearing 
filed pursuant to the requirements of Sec. 4.241(a) or a copy of a 
notice of appeal filed pursuant to the requirements of Sec. 4.320(b), 
he or she must initiate payment of allowed claims, distribution of the 
estate, and all other actions required by the OHA deciding official's 
final order.
    (b) The Superintendent must not initiate the payment of claims or 
distribution of the estate during the pendency of proceedings under 
Sec. 4.241 or Sec. 4.242, unless the OHA deciding official orders 
otherwise in writing. The Board may, at any time, authorize the OHA 
deciding official to issue interim orders for payment of claims or for 
partial distribution during the pendency of proceedings on appeal.

Miscellaneous


Sec. 4.281  Claims for attorney fees.

    (a) Attorneys representing Indians in proceedings under these 
regulations may be allowed fees therefor by the OHA deciding official. 
At the discretion of the OHA deciding official, such fees may be 
chargeable against the interests of the party thus represented, or 
where appropriate, they may be taxed as a cost of administration. 
Petitions for allowance of fees must be filed prior to the close of the 
last hearing and must be supported by such proof as is required by the 
OHA deciding official. In determining attorney fees, consideration must 
be given to the fact that the property of the decedent is restricted or 
held in trust and that it is the duty of the Department to protect the 
rights of all parties in interest.
    (b) Nothing herein 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 an 
attorney's fees is subject to a petition for rehearing and to an 
appeal.


Sec. 4.282  Guardians for incompetents.

    Minors and other legal incompetents who are parties in interest 
must be represented at all hearings by legally appointed guardians, or 
by guardians ad litem appointed by the OHA deciding official.

Tribal Purchase of Interests Under Special Statutes


Sec. 4.300  Authority and scope.

    (a) The rules and procedures set forth in Secs. 4.300 through 4.308 
apply only to proceedings in Indian probate which relate to the tribal 
purchase of a decedent's interests in trust and restricted land as 
provided by:
    (1) 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), with respect to trust or restricted land within the Yakima 
Reservation or within the area ceded by the Treaty of June 9, 1855 (12 
Stat. 1951);
    (2) The Act of August 10, 1972 (Pub. L. 92-377; 86 Stat. 530), with 
respect to trust or restricted land within the Warm Springs Reservation 
or within the area ceded by the Treaty of June 25, 1855 (12 Stat. 37); 
and
    (3) The Act of September 29, 1972 (Pub. L. 92-443; 86 Stat. 744), 
with respect to trust or restricted land within the Nez Perce Indian 
Reservation or within the area ceded by the Treaty of June 11, 1855 (12 
Stat. 957).
    (b)(1) In the exercise of probate authority, an OHA deciding 
official will determine:
    (i) The entitlement of a tribe to purchase a decedent's interests 
in trust or restricted land under the statutes;
    (ii) The entitlement of a surviving spouse to reserve a life estate 
in one-half of the surviving spouse's interests which have been 
purchased by a tribe; and
    (iii) The fair market value of such interests, including the value 
of any life estate reserved by a surviving spouse.
    (2) In the determination under paragraph (b)(1) of this section of 
the entitlement of a tribe to purchase the interests of an heir or 
devisee, the issues of
    (i) Enrollment or refusal of the tribe to enroll a specific 
individual and
    (ii) Specification of blood quantum, where pertinent, will be 
determined by the official tribal roll which is binding upon the OHA 
deciding official. For good cause shown, the OHA deciding official may 
stay the probate proceeding to permit an aggrieved party to pursue an 
enrollment application, grievance, or appeal through the established 
procedures applicable to the tribe.


Sec. 4.301  Valuation report.

    (a) In all probates, at the earliest possible stage of the 
proceeding before issuance of a probate decision, the BIA must furnish 
a valuation of the decedent's interests when the record reveals to the 
Superintendent:

[[Page 67665]]

    (1) That the decedent owned interests in land located on one or 
more of those reservations designated in Sec. 4.300 and
    (2) That any one or more of the probable heirs or devisees, who may 
become a distributee of such interests upon completion of the probate 
proceeding, is not enrolled in or does not have the required blood 
quantum in the tribe of the reservation where the land is located to 
hold such interests against a claim thereto made by the tribe. If there 
is a surviving spouse whose interests may be subject to the tribal 
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. 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.
    (b) BIA must submit the valuation report in the probate package 
submitted to the OHA deciding official. Interested parties may examine 
and copy, at their expense, the valuation report at the office of the 
Superintendent or the OHA deciding official.


Sec. 4.302  Conclusion of probate and tribal exercise of statutory 
option.

    (a) Conclusion of probate; findings in the probate decision. When a 
decedent is shown to have owned land interests in any one or more of 
the reservations mentioned in the statutes enumerated in Sec. 4.300, 
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 Secs. 4.200 
through 4.282 and Secs. 4.310 through 4.323. This decision will be 
referred to herein as the ``probate decision.'' At the probate hearing 
a finding must be made on the record showing those interests in land, 
if any, which are subject to the tribal option. The finding must be 
reduced to writing 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 option 
to reserve a life estate in one-half of such interests. If the finding 
is that there are no interests subject to the tribal option, the 
decision must so state. A copy of the probate decision, to which must 
be attached a copy of the valuation report, must be distributed to all 
parties in interest in accordance with Secs. 4.201 and 4.240.
    (b) Tribal exercise of statutory option. A tribe may purchase all 
or a part of the available interests specified in the probate decision 
within 60 days from the date of the probate decision unless a petition 
for rehearing or a demand for hearing has been filed in accordance with 
Sec. 4.304 or 4.305. 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. The tribe must 
file a written notice of purchase with the Superintendent, together 
with the tribe's certification that copies thereof have been mailed on 
the same date to the OHA deciding official and to the affected heirs or 
devisees. Upon failure to timely file a notice of purchase, the right 
to distribution of all unclaimed interests will accrue to the heirs or 
devisees.


Sec. 4.303  Notice by surviving spouse to reserve a life estate.

    When the heir or devisee whose interests are subject to the tribal 
option is a surviving spouse, the spouse may reserve a life estate in 
one-half of such interests. The spouse must file a written notice to 
reserve with the Superintendent within 30 days after the tribe has 
exercised its option to purchase the interest in question, together 
with a certification that copies thereof have been mailed on the same 
date to the OHA deciding official and the tribe. Failure to timely file 
a notice to reserve a life estate will constitute a waiver thereof.


Sec. 4.304  Rehearing.

    Any party in interest aggrieved by the probate decision may, within 
60 days from the date of the probate decision, file with the OHA 
deciding official a written petition for rehearing in accordance with 
Sec. 4.241.


Sec. 4.305  Hearing.

    (a) Demand for hearing. Any party in interest aggrieved by the 
exercise of the tribal option to purchase the interests in question or 
the valuation of the interests as set forth in the valuation report 
may, within 60 days from the date of the probate decision or 60 days 
from the date of the decision on rehearing, whichever is applicable, 
file with the OHA deciding official a written demand for hearing, 
together with a certification that copies thereof have been mailed on 
the same date to the Superintendent and to each party in interest; 
provided, however, that an aggrieved party will have at least 20 days 
from the date the tribe exercises its option to purchase available 
interests to file such a demand. The demand must state specifically and 
concisely the grounds upon which it is based.
    (b) Notice; burden of proof. The OHA deciding official will, upon 
receipt of a demand for hearing, set a time and place therefor and must 
mail notice thereof to all parties in interest not less than 30 days in 
advance; provided, however, that such date must be set after the 
expiration of the 60-day period fixed for the filing of the demand for 
hearing as provided in Sec. 4.305(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.
    (c) Decision after hearing; appeal. Upon conclusion of the hearing, 
the OHA deciding official will issue a decision which determines all of 
the issues including, but not limited to, a judgment establishing the 
fair market value of the interests purchased by the tribe, including 
any adjustment thereof made necessary by the surviving spouse's 
decision to reserve a life estate in one-half of the interests. The 
decision must specify the right of appeal to the Board of Indian 
Appeals within 60 days from the date of the decision in accordance with 
Secs. 4.310 through 4.323. The OHA deciding official must lodge the 
complete record relating to the demand for hearing with the title plant 
as provided in Sec. 4.236(b), furnish a duplicate record thereof to the 
Superintendent, and mail a notice of such action together with a copy 
of the decision to each party in interest.


Sec. 4.306  Time for payment.

    A tribe must pay the full fair market value of the interests 
purchased, as set forth in the valuation report or as determined after 
hearing in accordance with Sec. 4.305, whichever is applicable, within 
2 years from the date of decedent's death or within 1 year from the 
date of notice of purchase, whichever comes later.


Sec. 4.307  Title.

    Upon payment by the tribe of the interests purchased, the 
Superintendent must issue a certificate to the OHA deciding official 
that this has been done and file therewith such documents in support 
thereof as the OHA deciding official may require. The OHA deciding 
official will then issue an order that the United States holds title to 
such interests in trust for the tribe, lodge the complete record, 
including the decision, with the title plant as provided in 
Sec. 4.236(b), furnish a duplicate record thereof to the 
Superintendent, and mail a notice of such action together with a

[[Page 67666]]

copy of the decision to each party in interest.


Sec. 4.308  Disposition of income.

    During the pendency of the probate and up to the date of transfer 
of title to the United States in trust for the tribe in accordance with 
Sec. 4.307, all income received or accrued from the land interests 
purchased by the tribe will be credited to the estate.

General Rules Applicable to Proceedings on Appeal Before the 
Interior Board of Indian Appeals


Sec. 4.310  Documents.

    (a) Filing. The effective date for filing a notice of appeal or 
other document with the Board during the course of an appeal is the 
date of mailing or the date of personal delivery, except that a motion 
for the Board to assume jurisdiction over an appeal under 25 CFR 
2.20(e) will be effective the date it is received by the Board.
    (b) Service. Notices of appeal and pleadings must be served on all 
parties in interest in any proceeding before the Interior Board of 
Indian Appeals by the party filing the notice or pleading with the 
Board. Service must be accomplished upon personal delivery or mailing. 
Where a party is represented in an appeal by an attorney or other 
representative authorized under 43 CFR 1.3, service of any document on 
the attorney or representative is service on the party. Where a party 
is represented by more than one attorney, service on any one attorney 
is sufficient. The certificate of service on an attorney or 
representative must include the name of the party whom the attorney or 
representative represents and indicate that service was made on the 
attorney or representative.
    (c) Computation of time for filing and service. Except as otherwise 
provided by law, in computing any period of time prescribed for filing 
and serving a document, the day upon which the decision or document to 
be appealed or answered was served or the day of any other event after 
which a designated period of time begins to run is not to be included. 
The last day of the period so computed is to be included, unless it is 
a Saturday, Sunday, Federal legal holiday, or other nonbusiness day, in 
which event the period runs until the end of the next day which is not 
a Saturday, Sunday, Federal legal holiday, or other nonbusiness day. 
When the time prescribed or allowed is 7 days or less, intermediate 
Saturdays, Sundays, Federal legal holidays, and other nonbusiness days 
are excluded in the computation.
    (d) Extensions of time. (1) The time for filing or serving any 
document except a notice of appeal may be extended by the Board.
    (2) A request to the Board for an extension of time must be filed 
within the time originally allowed for filing.
    (3) For good cause the Board may grant an extension of time on its 
own initiative.
    (e) Retention of documents. All documents received in evidence at a 
hearing or submitted for the record in any proceeding before the Board 
will be retained with the official record of the proceeding. The Board, 
in its discretion, may permit the withdrawal of original documents 
while a case is pending or after a decision becomes final upon 
conditions as required by the Board.


Sec. 4.311  Briefs on appeal.

    (a) The appellant may file an opening brief within 30 days after 
receipt of the notice of docketing. Appellant must serve copies of the 
opening brief upon all interested parties or counsel and file a 
certificate with the Board showing service upon the named parties. 
Opposing parties or counsel will have 30 days from receipt of 
appellant's brief to file answer briefs, copies of which must be served 
upon the appellant or counsel and all other parties in interest. A 
certificate showing service of the answer brief upon all parties or 
counsel must be attached to the answer filed with the Board.
    (b) Appellant may reply to an answering brief within 15 days from 
its receipt. A certificate showing service of the reply brief upon all 
parties or counsel must be attached to the reply filed with the Board. 
Except by special permission of the Board, no other briefs will be 
allowed on appeal.
    (c) The BIA is considered an interested party in any proceeding 
before the Board. The Board may request that the BIA submit a brief in 
any case before the Board.
    (d) An original only of each document should be filed with the 
Board. Documents should not be bound along the side.
    (e) The Board may also specify a date on or before which a brief is 
due. Unless expedited briefing has been granted, such date may not be 
less than the appropriate period of time established in this section.


Sec. 4.312  Decisions.

    Decisions of the Board will be made in writing and will set forth 
findings of fact and conclusions of law. The decision may adopt, 
modify, reverse or set aside any proposed finding, conclusion, or order 
of a BIA official or an OHA deciding official. Distribution of 
decisions must be made by the Board to all parties concerned. Unless 
otherwise stated in the decision, rulings by the Board are final for 
the Department and must be given immediate effect.


Sec. 4.313  Amicus Curiae; intervention; joinder motions.

    (a) Any interested person or Indian tribe desiring to intervene or 
to join other parties or to appear as amicus curiae or to obtain an 
order in an appeal before the Board must apply in writing to the Board 
stating the grounds for the action sought. Permission to intervene, to 
join parties, to appear, or for other relief, may be granted for 
purposes and subject to limitations established by the Board. This 
section will be liberally construed.
    (b) Motions to intervene, to appear as amicus curiae, to join 
additional parties, or to obtain an order in an appeal pending before 
the Board must be served in the same manner as appeal briefs.


Sec. 4.314  Exhaustion of administrative remedies.

    (a) No decision of an OHA deciding official or a BIA official, 
which at the time of its rendition is subject to appeal to the Board, 
will be considered final so as to constitute agency action subject to 
judicial review under 5 U.S.C. 704, unless made effective pending 
decision on appeal by order of the Board.
    (b) No further appeal will lie within the Department from a 
decision of the Board.
    (c) The filing of a petition for reconsideration is not required to 
exhaust administrative remedies.


Sec. 4.315  Reconsideration.

    (a) Reconsideration of a decision of the Board will be granted only 
in extraordinary circumstances. Any party to the decision may petition 
for reconsideration. The petition must be filed with the Board within 
30 days from the date of the decision and must contain a detailed 
statement of the reasons why reconsideration should be granted.
    (b) A party may file only one petition for reconsideration.
    (c) The filing of a petition will not stay the effect of any 
decision or order and will not affect the finality of any decision or 
order for purposes of judicial review, unless so ordered by the Board.


Sec. 4.316  Remands from courts.

    Whenever any matter is remanded from any federal court to the Board 
for further proceedings, the Board will

[[Page 67667]]

either remand the matter to an OHA deciding official or to the BIA, or 
to the extent the court's directive and time limitations will permit, 
the parties will be allowed an opportunity to submit to the Board a 
report recommending procedures for it to follow to comply with the 
court's order. The Board will enter special orders governing matters on 
remand.


Sec. 4.317  Standards of conduct.

    (a) Inquiries about cases. All inquiries with respect to any matter 
pending before the Board must be made to the Chief Administrative Judge 
of the Board or the administrative judge assigned the matter.
    (b) Disqualification. An administrative judge may withdraw from a 
case in accordance with standards found in the recognized canons of 
judicial ethics if the judge deems such action appropriate. If, prior 
to a decision of the Board, a party files an affidavit of personal bias 
or disqualification with substantiating facts, and the administrative 
judge concerned does not withdraw, the Director of the Office of 
Hearings and Appeals will determine the matter of disqualification.


Sec. 4.318  Scope of review.

    An appeal will be limited to those issues which were before the OHA 
deciding official upon the petition for rehearing, reopening, or 
regarding tribal purchase of interests, or before the BIA official on 
review. However, except as specifically limited in this part or in 
title 25 of the Code of Federal Regulations, the Board will not be 
limited in its scope of review and may exercise the inherent authority 
of the Secretary to correct a manifest injustice or error where 
appropriate.

Appeals to the Board of Indian Appeals in Probate Matters


Sec. 4.320  Who may appeal.

    (a) A party in interest has a right to appeal to the Board from an 
order of an OHA deciding official on a petition for rehearing, a 
petition for reopening, or regarding tribal purchase of interests in a 
deceased Indian's trust estate.
    (b) Notice of appeal. Within 60 days from the date of the decision, 
an appellant must file a written notice of appeal signed by appellant, 
appellant's attorney, or other qualified representative as provided in 
43 CFR 1.3, with the Board of Indian Appeals, Office of Hearings and 
Appeals, U.S. Department of the Interior, 4015 Wilson Boulevard, 
Arlington, Virginia 22203. A statement of the errors of fact and law 
upon which the appeal is based must be included in either the notice of 
appeal or in any brief filed. The notice of appeal must include the 
names and addresses of parties served. A notice of appeal not timely 
filed will be dismissed for lack of jurisdiction.
    (c) Service of copies of notice of appeal. The appellant must 
personally deliver or mail the original notice of appeal to the Board 
of Indian Appeals. A copy must be served upon the OHA deciding official 
whose decision is appealed as well as all interested parties. The 
notice of appeal filed with the Board must include a certification that 
service was made as required by this section.
    (d) Action by the OHA deciding official; record inspection. The OHA 
deciding official, upon receiving a copy of the notice of appeal, must 
notify the Superintendent concerned to return the duplicate record 
filed under Secs. 4.236(b) and 4.241(d), or under Sec. 4.242(f) of this 
part, to the Land Titles and Records Office designated under 
Sec. 4.236(b) of this part. The duplicate record must be conformed to 
the original by the Land Titles and Records Office and will thereafter 
be available for inspection either at the Land Titles and Records 
Office or at the office of the Superintendent. In those cases in which 
a transcript of the hearing was not prepared, the OHA deciding official 
will have a transcript prepared which must be forwarded to the Board 
within 30 days from receipt of a copy of the notice of appeal.


Sec. 4.321  Notice of transmittal of record on appeal.

    The original record on appeal must be forwarded by the Land Titles 
and Records Office to the Board by certified mail. Any objection to the 
record as constituted must be filed with the Board within 15 days of 
receipt of the notice of docketing issued under Sec. 4.332 of this 
part.


Sec. 4.322  Docketing.

    The appeal will be docketed by the Board upon receipt of the 
administrative record from the Land Titles and Records Office. All 
interested parties as shown by the record on appeal must be notified of 
the docketing. The docketing notice must specify the time within which 
briefs may be filed and must cite the procedural regulations governing 
the appeal.


Sec. 4.323  Disposition of the record.

    Subsequent to a decision of the Board, other than remands, the 
record filed with the Board and all documents added during the appeal 
proceedings, including any transcripts prepared because of the appeal 
and the Board's decision, must be forwarded by the Board to the Land 
Titles and Records Office designated under Sec. 4.236(b) of this part. 
Upon receipt of the record by the Land Titles and Records Office, the 
duplicate record required by Sec. 4.320(c) of this part must be 
conformed to the original and forwarded to the Superintendent 
concerned.
[FR Doc. 01-32051 Filed 12-28-01; 8:45 am]
BILLING CODE 4310-79-P