67652 Federal Register / Vol. 66, No. 250 / Monday, December 31, 2001 / Rules and Regulations

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.

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 § 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.

Federal Register / Vol. 66, No. 250 / Monday, December 31, 2001 / Rules and Regulations 67653

1These 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.

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 § 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

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 § 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 § 4.211.

Commenters raised two issues

concerning this revision to § 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 § 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 § 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,

67654 Federal Register / Vol. 66, No. 250 / Monday, December 31, 2001 / Rules and Regulations

comparable to that required by § 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 § 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 § 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

§ 4.250(a) and the provisions of

§ 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 § 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 § 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

§ 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 § 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

§ 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 § 4.251(e)–(f).

On the other hand, § 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

§ 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 § 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 § 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 § 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 § 4.251(e)–(f) on

that amount. This final rule revises

§ 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 § 4.241(a) or a copy of a

notice of appeal filed pursuant to

§ 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,

§ 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

Federal Register / Vol. 66, No. 250 / Monday, December 31, 2001 / Rules and Regulations 67655

every case. Therefore, the more general

term ‘‘valuation’’ is substituted for

‘‘appraisal’’ in § 4.301. The same change

has been made to §§ 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 foreignbased 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

67656 Federal Register / Vol. 66, No. 250 / Monday, December 31, 2001 / Rules and Regulations

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 costbenefit 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 §§ 4.200 through 4.323 to

read as follows:

Scope of Regulations; Definitions;

General Authority of OHA Deciding

Officials

§ 4.200 Scope of regulations.

Included in §§ 4.200 through 4.202

are general rules applicable to all

proceedings in subpart D of this part.

Included in §§ 4.203 through 4.282 and

§§ 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

§§ 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

§§ 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

§ 4.330. Except as limited by the

provisions herein, the rules in subparts

A and B of this part apply to these

proceedings.

§ 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 § 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.

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

§ 4.202 General authority of OHA deciding

officials.

An OHA deciding official will, except

as otherwise provided in § 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

§ 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

§ 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 § 4.240(b).

§ 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

§ 4.202.

§ 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.

§ 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 § 4.242.

67658 Federal Register / Vol. 66, No. 250 / Monday, December 31, 2001 / Rules and Regulations

§ 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.

§ 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

§ 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

§§ 4.250 and 4.251.

§ 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.

§ 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.

Federal Register / Vol. 66, No. 250 / Monday, December 31, 2001 / Rules and Regulations 67659

Depositions, Discovery, and Prehearing

Conference

§ 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.

§ 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.

§ 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.

§ 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 §§ 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

67660 Federal Register / Vol. 66, No. 250 / Monday, December 31, 2001 / Rules and Regulations

demands are made so as to delay the

orderly progress of the proceeding or

cause unacceptable hardship upon a

party or witness.

§ 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

§ 4.220; or on the failure of a party to

appear for examination under § 4.221 or

on the failure of a party to respond to

interrogatories or requests for

admissions under § 4.222; or on the

failure of a party to comply with an

order of the OHA deciding official

issued under § 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.

§ 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

§ 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.

§ 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.

§ 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.

§ 4.233 Proof of wills, codicils, and

revocations.

(a) Self-proved wills. A will executed

as provided in § 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 llllll County of

llllll ss. I, llllll, being

first duly sworn, on oath, depose and

say: That I am an ll (enrolled or

unenrolled) member of the llllll

Tribe of Indians in the State of

llllll; that on the ll day of

lll, 19ll, I requested llllll

to prepare a will for me; that the

attached will was prepared and I

requested llllll and

llllll 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, lllllll andlllllll,

each being first duly sworn, on oath,

depose and state: That on the llday

of lll, 19ll, llll a member of

the llll Tribe of Indians of the

State of llll, published and

declared the attached instrument to be

his/her last will and testament, signed

the same in the presence of both of us

and requested both of us to sign the

same as witnesses; that we, in

compliance with his/her request, signed

the same as witnesses in his/her

presence and in the presence of each

other; that said testator/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.

lllllllllllllllllllll

Witness

lllllllllllllllllllll

Witness

Subscribed and sworn to before me

thislll day oflll, 19ll,by

llllltestator/testatrix, and by

Federal Register / Vol. 66, No. 250 / Monday, December 31, 2001 / Rules and Regulations 67661

llllland lllll; attesting

witnesses.

lllllllllllllllllllll

lllllllllllllllllllll

(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 § 4.232 are applicable

with respect to remaining issues.

§ 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.

§ 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

§ 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.

§ 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

§ 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 nonIndian, 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 § 4.241.

§ 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,

67662 Federal Register / Vol. 66, No. 250 / Monday, December 31, 2001 / Rules and Regulations

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

§ 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.

§ 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

§§ 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 § 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

§ 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

§ 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

§ 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

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

§ 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.

§ 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

§ 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.

§ 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.

§ 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 § 4.261.

Custody and Distribution of Estates

§ 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 §§ 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.

67664 Federal Register / Vol. 66, No. 250 / Monday, December 31, 2001 / Rules and Regulations

§ 4.271 Omitted property.

(a) When, subsequent to the issuance

of a decision under § 4.240 or § 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 § 4.240. The

record of any such proceeding must be

lodged with the title plant designated

under § 4.236(b).

§ 4.272 Improperly included property.

(a) When, subsequent to a decision

under § 4.240 or § 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 § 4.240(b).

(d) A party aggrieved by the OHA

deciding official’s decision may appeal

to the Board pursuant to the procedures

in §§ 4.310 through 4.323.

(e) The record of all proceedings must

be lodged with the title plant designated

under § 4.236(b).

§ 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 § 4.241(a) or a copy

of a notice of appeal filed pursuant to

the requirements of § 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 § 4.241

or § 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

§ 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.

§ 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

§ 4.300 Authority and scope.

(a) The rules and procedures set forth

in §§ 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.

§ 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:

Federal Register / Vol. 66, No. 250 / Monday, December 31, 2001 / Rules and Regulations 67665

(1) That the decedent owned interests

in land located on one or more of those

reservations designated in § 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.

§ 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

§ 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 §§ 4.200 through 4.282 and

§§ 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 §§ 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 § 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.

§ 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.

§ 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 § 4.241.

§ 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 § 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 §§ 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 § 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.

§ 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 § 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.

§ 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

§ 4.236(b), furnish a duplicate record

thereof to the Superintendent, and mail

a notice of such action together with a

67666 Federal Register / Vol. 66, No. 250 / Monday, December 31, 2001 / Rules and Regulations

copy of the decision to each party in

interest.

§ 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 § 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

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 4.316 Remands from courts.

Whenever any matter is remanded

from any federal court to the Board for

further proceedings, the Board will

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

§ 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.

§ 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

§ 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 §§ 4.236(b)

and 4.241(d), or under § 4.242(f) of this

part, to the Land Titles and Records

Office designated under § 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.

§ 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 § 4.332 of this

part.

§ 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.

§ 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 § 4.236(b) of

this part. Upon receipt of the record by

the Land Titles and Records Office, the

duplicate record required by § 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