Proposed Rule: Indian Trust Management Reform

Tuesday,
August 8, 2006
Part IV
Department of the
Interior
Bureau of Indian Affairs
25 CFR Parts 15, 18, 150, et al.
43 CFR Parts 4 and 30
Indian Trust Management Reform;
Proposed Rule
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45174 Federal Register / Vol. 71, No. 152 / Tuesday, August 8, 2006 / Proposed Rules
DEPARTMENT OF THE INTERIOR ADDRESSES: You may submit comments, B. The Need for this Proposed Rulemaking
identified by the number 1076–AE59, by C. Development of Proposed Reguatory
Bureau of Indian Affairs any of the following methods: Language
D. Status of Other Indian Trust
—Federal rulemaking portal: http:// Management Reform Regulations
25 CFR Parts 15, 18, 150, 152, and 179 www.regulations.gov. Follow the III. Overview of Proposed Rule
instructions for submitting comments. IV. Part-by-Part Analysis
Office of the Secretary —Web site at http:// A. 25 CFR Part 15
www.doitrustregs.com. B. 25 CFR Part 18
43 CFR Parts 4 and 30 —E-mail: Michele_F_Singer@ios.doi.gov. C. 25 CFR Part 150
Include the number 1076–AE59 in the D. 25 CFR Part 152
RIN 1076–AE59 subject line of the message. E. 25 CFR Part 179
—Fax: (202) 208–5320. Include the F. 43 CFR Part 4
Indian Trust Management Reform number 1076–AE59 in the subject line G. 43 CFR Part 30
of the message. V. Public Comments
AGENCY: Bureau of Indian Affairs, Office —Mail: U.S. Department of the Interior, A. Comments Received Prior to This
of the Secretary, Interior. 1849 C Street, NW., Mail Stop 4141, Publication
Washington, DC 20240 B. Directions for Submitting Comments
ACTION: Proposed rule. —Hand delivery: Michele Singer, U.S. VI. Procedural Requirements
A. Regulatory Planning and Review
Department of the Interior, 1849 C (Executive Order 12866)
SUMMARY: The Bureau of Indian Affairs Street, NW., Washington, DC 20240.
(BIA) and the Office of the Secretary B. Regulatory Flexibility Act
Comments on the information C. Small Business Regulatory Enforcement
propose to amend several of their collection burdens, including comments and Fairness Act
regulations related to Indian trust on or requests for copies of the D. Unfunded Mandates Reform Act of 1995
management to further fulfill the ‘‘Application for Consolidation by Sale’’ E. Governmental Actions and Interference
Secretary’s fiduciary responsibilities to form, are separate from those on the with Constitutionally Protected Property
federally recognized tribes and substance of the rule. Send comments Rights (Executive Order 12630)
individual Indians and to meet the F. Federalism (Executive Order 13132)
on the information collection burdens G. Civil Justice Reform (Executive Order
Indian trust management policies to: Interior Desk Officer 1076–AE59,
articulated by Congress in the Indian 12988)
Office of Management and Budget, e- H. Paperwork Reduction Act
Land Consolidation Act (ILCA), as mail: I. National Environmental Policy Act
amended by the American Indian oira_docket@omb.eop.gov; or 202/395– (NEPA)
Probate Reform Act of 2004 (AIPRA). 6566 (fax). Please also send a copy of J. Government-to-Government
These amendments address Indian trust your comments to BIA at the location Relationships with Tribes (Executive
management issues in the areas of specified under the heading ADDRESSES. Order 13175)
probate, probate hearings and appeals, K. Energy Effects (Executive Order 13211)
FOR FURTHER INFORMATION CONTACT:
tribal probate codes, life estates and I. Statutory Authority
Michele Singer, Counselor to the
future interests in Indian land, the
Assistant Secretary—Indian Affairs, Regulatory amendments to these parts are
Indian land title of record; and
Department of the Interior, Bureau of proposed under the general authority of the
conveyances of trust or restricted land. Trust Fund Management Reform Act of 1994,
Indian Affairs, 1849 C Street NW., Mail
There is also an ‘‘Application for 25 U.S.C. 4021 et seq., and the Indian Land
Stop 4141, Washington, DC 20240,
Consolidation by Sale’’ form that is Consolidation Act of 2000 (ILCA) as
telephone (202) 273–4680.
associated with one of these amended by the American Indian Probate
amendments. SUPPLEMENTARY INFORMATION: Reform Act of 2004 (AIPRA), 25 U.S.C. 2201
I. Statutory Authority et seq. The following table provides
DATES:Please submit your comments by II. Background additional statutory authority specific to each
October 10, 2006. A. History of the Rule CFR part.
25 CFR part 15 ............................... 5 U.S.C. 301; 25 U.S.C. 2, 9, 372–74, 410; 44 U.S.C. 3101 et seq.
25 CFR part 18 ............................... 5 U.S.C. 301; 25 U.S.C. 2, 9, 372–74, 410; 44 U.S.C. 3101 et seq.; Pub. L. 108–374 (American Indian
NEW-Tribal Probate Codes ............ Probate Reform Act of 2004).
25 CFR part 150 ............................. Act of June 30, 1834 (4 Stat. 738; 25 U.S.C. 9). Act of July 26, 1892 (27 Stat. 272; 25 U.S.C. 5). Reorga-
nization Plan No. 3 of 1950 approved June 20, 1949 (64 Stat. 1262). (Act of April 26, 1906 (34 Stat.
137); Act of May 27, 1908 (35 Stat. 312); Act of August 1, 1914 (38 Stat. 582, 598) deals specifically
with land records of the Five Civilized Tribes. Act of February 14, 1920 (41 Stat. 415) amended
March 1, 1933 (47 Stat. 1417; 25 U.S.C. 413); 5 U.S.C. 552a; and 31 U.S.C. 9701.
25 CFR part 152 ............................. R.S. 161; 5 U.S.C. 301. Interpret or apply sec. 7, 32 Stat. 275, 34 Stat. 1018, sec. 1, 35 Stat. 444, sec. 1
and 2, 36 Stat. 855, as amended, 856, as amended, sec. 17, 39 Stat. 127, 40 Stat. 579, 62 Stat. 236,
sec. 2, 40 Stat. 606, 68 Stat. 358, 69 Stat. 666: 25 U.S.C. 378, 379, 405, 404, 372, 373, 483, 355, un-
less otherwise noted.
25 CFR part 179 ............................. 86 Stat. 530; 86 Stat. 744; 94 Stat. 537; 96 Stat. 2515; 25 U.S.C. 2, 9, 372, 373, 487, 607, and 2201–11;
Pub. L. 108–374 (American Indian Probate Reform Act of 2004).
43 CFR part 4 ................................. 5 U.S.C. 301; 43 U.S.C. 1201.
43 CFR part 30 ............................... 5 U.S.C. 301; 43 U.S.C. 1201.
NEW—Probate Hearing Proce-
dures.
Federal Register / Vol. 71, No. 152 / Tuesday, August 8, 2006 / Proposed Rules 45175
II. Background representatives was formed. The comments throughout the trust reform
This rulemaking is a result of a subcommittee met regularly to review process. These efforts guided in-house
collaborative, multi-year undertaking to the ‘‘As-Is’’ processes of the way major teams in drafting the specific regulatory
identify a comprehensive strategy for trust functions were performed at that language included in this proposed
improving Indian trust management. time. From this ‘‘As-Is’’ model, the rulemaking. The in-house teams
The Department of the Interior manages subcommittee identified business goals consisted of Federal personnel from
Indian trust assets in accordance with and objectives the Department should Department headquarters and the field,
meet in fulfilling its trust and included program officers and
its fiduciary trust relationship with
responsibilities and providing improved Department attorneys possessing
tribes and individual Indians. The term
services to trust beneficiaries. It then extensive expertise in probate, land
‘‘tribes’’ is used in this preamble to refer
developed the overall strategy to meet titles and records, acquisition and
to Federally recognized tribes. The
those goals and objectives, documented conveyance, leasing and grazing, and
purpose of today’s proposed rulemaking
as the Comprehensive Trust administrative appeals. On December
is to allow the Department of the
Management (CTM) plan. 27, 2005, the Department shared
Interior to better meet its fiduciary trust The CTM laid the groundwork for
responsibilities and to carry out the advance copies of the proposed
trust reform by providing strategic regulatory language (identified as
policies established by Congress to direction for development of the ‘‘To-
strengthen tribal sovereignty. This ‘‘preliminary drafts’’ throughout this
Be’’ model, known as the Fiduciary preamble) with leaders of each
rulemaking will provide the Department Trust Model (FTM). The FTM redesigns
with the tools to more effectively and Federally recognized tribal government,
trust processes into more efficient, as well as additional contacts in Indian
consistently manage trust assets and consistent, integrated, and fiscally
better serve its trust beneficiaries (i.e., country, for their input and
responsible business processes. In recommendations. The Department has
Indian tribes and individual Indians). developing the FTM, the team also presented the preliminary drafts
A. History of the Rule incorporated years of Departmental and obtained the input of tribes at two
consultation with tribes. The formal consultation meetings: one in
The Department of the Interior has Department adopted the FTM in
been examining ways to better meet its Albuquerque, New Mexico on February
December 2004 to guide trust reform. 14–15, 2006, and one in Portland,
fiduciary trust responsibilities since Together with Indian affairs policies,
1994, when Congress passed the Trust Oregon on March 29, 2006. Comments
the FTM forms the basis of today’s received during these consultations and
Fund Management Reform Act. rulemaking.
Throughout this time, the Department in the time leading up to this
has sought the participation and input B. The Need for This Proposed publication have identified several
of tribal leaders and individual Indian Rulemaking issues that the Department considered
beneficiaries to identify ways in which in revising the preliminary drafts for
Since adopting the FTM, the
the Department can better serve its publication as a proposed rule. In
Department has formed an FTM
beneficiaries. accordance with the government-to-
Implementation Team with tribal
In July 2001, the Secretary of the government relationship with tribes,
representatives. The FTM
Interior (Secretary) issued Secretarial formal consultations are also being
Implementation Team is leading
Orders 3231 and 3232. These orders scheduled to take place during the
internal organizational changes for
created the Office of Historical Trust comment period that follows this
improving performance and
Accounting (OHTA) to perform publication in the Federal Register to
accountability in management of the
historical accounting of trust assets and facilitate an informed final rule. See
trust. At the beginning of the
created a temporary Office of the Indian Section IV, Public Comments, for details
reengineering process, the Joint Task
Trust Transition (OITT), which was on upcoming consultations.
Force had anticipated that regulatory
charged with reorganizing the agency to changes would be necessary to fully D. Status of Other Indian Trust
better meet beneficiaries’’ needs. These implement trust reform. The Team has Management Reform Regulations
Secretarial Orders also stated the since determined, and the Secretary has
Secretary’s policy to take a more confirmed, that certain regulatory The Department is also developing
coordinated approach to ensure the changes are indeed needed to enable the regulatory amendments to land
overall success of trust reform. Department to fully implement the acquisitions (25 CFR part 151), leasing
In accordance with this policy, the FTM. Today’s proposed rule includes (25 CFR part 162), and grazing (25 CFR
Department reevaluated its approach to many of these necessary regulatory part 166), and developing draft
trust reform and, in January 2002, changes. regulatory language addressing trust
embarked on an examination and Additionally, Congress enacted the fund accounting and appeals (new CFR
reengineering of its Indian trust American Indian Probate Reform Act of part), unclaimed moneys/whereabouts
management processes. This effort 2004. AIPRA amends ILCA to better unknown (new CFR part), and fees for
differed from prior trust reform efforts meet the trust reform goals for land service (new CFR part). Based on input
because it took a comprehensive consolidation articulated in ILCA. received during the February 14–15,
approach to trust reform, linking Regulatory changes authorized by 2006, Albuquerque tribal consultation
individual trust reform issues to an AIPRA are included in this proposed session, the Department has determined
overall strategy. To ensure that the rule. that these regulations require additional
strategy fully considered tribal work before publication as a proposed
concerns, the Department assembled a C. Development of Proposed Regulatory rule. The Department plans to
Joint Task Force of tribal representatives Language promulgate these additional regulations
and representatives from the This proposed rulemaking at some point in the future. Together,
Department. encompasses tribal and Departmental these regulatory changes will provide
From members of this Joint Task representatives’ efforts on the Joint Task the Department with the tools it needs
Force, a subcommittee of both tribal Force, as well as the efforts of tribal to better serve beneficiaries and will
representatives and Department representatives who have provided standardize procedures for consistent
execution of fiduciary responsibilities of land) of tribal and individual Indian distribution tables listing what current
across BIA Regions. interests in trust and restricted property CFR sections are proposed for change,
through the use of several tools. These the new (i.e., proposed) CFR section,
III. Overview of Proposed Rule
tools include the opportunities for tribes and a description of the proposed
The proposed rule amends various to establish a tribal land consolidation changes. Because this proposed rule
parts of the CFR to further implement plan; purchase interests in land within incorporates changes made to the
Indian trust management reform and their respective jurisdictions when preliminary drafts, which were
meet the policies expressed by Congress offered for negotiated sale, gift, or distributed to tribes in December 2005,
in ILCA, as amended by AIPRA. exchange; make a tribal tract purchase the following part-by-part analysis
Together, these amendments form an (i.e., obtain fractionated interests of non- includes a discussion of major changes
integrated approach to Indian trust consenting trust and restricted owners made to each preliminary draft of the
management related to probate, land under certain circumstances); and unify CFR part in response to comments.
records and title documents, and ownership and consolidate interests in
conveyances that allow the Department A. 25 CFR Part 15
a tract through partition. The
to better meet the needs of its amendments allow both tribes and The purpose of this part is to describe
beneficiaries. individual Indians to obtain highly the authorities, policies and procedures
The Department has revised many of fractionated interests through a new the BIA (or tribe that has contracted or
these regulations, in accordance with mechanism, created by AIPRA: compacted to fulfill probate functions)
the Plain Language Initiative (63 FR consolidation by sale (called ‘‘partition uses to prepare a probate file for an
31885 (June 10, 1998)) to facilitate ease of highly fractionated lands’’ in AIPRA). Indian decedent’s trust estate, except for
of use and public comprehension. Additionally, the new AIPRA restricted land derived from allotments
In addition to making plain language mechanisms being incorporated in made to members of the Five Civilized
revisions, amendments revise the probate regulations will offer Tribes (Cherokee, Choctaw, Chickasaw,
regulations to: opportunities to reduce fractionation Creek and Seminole) in Oklahoma.
• Incorporate AIPRA changes to through the distribution of probate Amendments to this part revise
probate: AIPRA created a uniform property. several subsections to ensure that the
probate code to standardize intestate • Improve service to beneficiaries: probate file delivered to OHA for
succession rules for trust and restricted Amendments to the Land Titles and adjudication is as complete as possible.
property. The uniform probate code Records Office (LTRO) regulations will By requiring a certification by BIA that
reinforces tribal sovereignty by update and standardize LTRO title they have examined certain sources of
eliminating the application of state laws practices and recordation to ensure the information and that the file is as
in the probate of trust and restricted Secretary is able to accurately track and complete as possible based on those
assets while deferring to approved tribal record accounting of trust and restricted sources of information, the amendments
probate codes. AIPRA also established interest owners, allowing the Secretary will prevent multiple transfers of the
new mechanisms for consolidating to better serve the beneficiaries. probate file between BIA and OHA,
fractionated interests at probate and Amendments to the probate process are facilitating the process. Additional
through sale of highly fractionated aimed at facilitating the process to changes to the records requirements,
tracts. The proposed amendments to reduce the probate backlog and better such as deleting the requirement for a
probate regulations would implement serve beneficiaries. By clarifying the birth certificate, are also intended to
AIPRA’s provisions by requiring the requirements and processes for probate, facilitate the probate process.
additional information needed to approval of tribal probate codes, The amendments ensure that
determine heirs and devisees to be obtaining LTRO services and products, information is included in the probate
included in the probate file, and by and conveying trust and restricted file to determine whether heirs and
establishing the procedures for property, the Department improves devisees meet the AIPRA definition of
directional disclaimers, purchases at communication and transparency, ‘‘Indian.’’ The amendments also
probate and consolidation agreements. allowing better service to beneficiaries. incorporate definitions regarding
These regulations continue to refer all The Department is committed to fully AIPRA’s new methods for consolidating
probate cases to OHA. The amendments explaining both the purpose and interests at probate:
streamline the OHA process by intended effects of these regulations in • Consolidation agreements, which
shortening deadlines to more reasonable this preamble. More detailed are agreements by the decedent’s heirs
time periods. Amendments to life estate explanations of each part are provided and devisees to consolidate their
provisions reflect AIPRA’s change in the below, followed by summaries of inherited/devised interests in trust and
valuation of a life estate to be ‘‘without comments received during tribal restricted land or consolidate their
regard to waste’’ and base the valuation consultations on the preliminary drafts inherited/devised interests in land with
on the four-year average Single Life of these regulations. The Department other interests they already own in trust
Factor used by the U.S. Internal welcomes any questions or comments and restricted land; and
Revenue Service in Table S of the 7520 requesting clarification of these parts, as • Purchase options at probate, which
rate schedule, without regard to gender. well as additional comments. allow eligible purchasers to purchase or
• Promote consolidation (reduce Additionally, upon finalization of any of exchange a decedent’s interest in trust
fractionation) of interests: Allotments these regulations, the Department plans or restricted land.
owned by Indians have become to develop training and other Amendments to this part ensure that
increasingly fractionated with the explanatory materials, where the probate file contains information
probate of each generation, resulting in appropriate, to facilitate transparency in necessary for implementation of
the division of the allotment into implementation of these regulations. statutory solutions to fractionation set
smaller and smaller interests. These out in 43 CFR part 4, which addresses
amendments meet the policy expressed IV. Part-by-Part Analysis OHA probate hearings. Part 15
by Congress to reduce fractionation (i.e., The following sections provide a prescribes what must be included in a
the exponential increase in the number description of the amendments with probate package and how it will be
of ownership interests in a given parcel respect to each CFR part and provide compiled.
Changes From Preliminary Draft consistency with definition of terms in diminished or destroyed while the
43 CFR parts 4, 30. The Department also probate is pending. Each of the
Several tribal commenters questioned
amended other terminology as a result emergency actions require a request to
why 25 CFR part 15 and 43 CFR part 4, of issues raised by tribal commenters: or hearing before OHA, so no unilateral
which both address the probate process, for example, it changed ‘‘trust financial action may be taken to sell land pending
are in separate CFR titles. The assets’’ and ‘‘cash assets’’ to ‘‘trust probate under this provision.
Department has determined that personalty’’ to encompass both cash and
because these two parts address At least one tribal commenter
securities, and it changed objected to the last provision in section
different agencies—25 CFR part 15 ‘‘beneficiaries’’ to ‘‘devisees,’’ which is
addresses BIA preparation of the 15.106 of the preliminary draft, allowing
a more precise term including only the Secretary to request any additional
probate file, and 43 CFR part 4 those who receive under a will. In
addresses adjudication of the probate information in support of the probate
section 15.8, the Department clarified file. The Department has deleted the
file once OHA receives it from BIA— what is meant by a ‘‘self-proved will.’’
these parts are best kept in their provision allowing the Secretary to
In response to tribal comments, the
respective titles. require additional information in
Department also significantly amended
Several commenters suggested that support of the probate file.
section 15.14. In the preliminary draft,
the definitions in both 25 CFR part 15 this section had provided that, pending The Department also clarified when
and 43 CFR part 4 should track the probate, the Secretary could take claims against an estate may be filed
definitions as set out in ILCA, as custody and control of the estate and and the deadline for filing such claims
amended by AIPRA. The Department take any action he or she determined to in section 15.202.
has reviewed the regulatory definitions, be necessary for the benefit of the estate, Distribution Table—25 CFR Part 15
and amended them as appropriate to including sale of the land. The version
ensure that they are consistent with of this section being proposed today The following distribution table
AIPRA and with 43 CFR parts 4, 30. instead provides limited emergency indicates where each of the current
The Department examined and actions that BIA may take when assets regulatory sections in 25 CFR part 15 is
changed terms, as appropriate, to ensure in an estate may be significantly located in the proposed 25 CFR part 15.
Current citation New citation Title Remarks
15.1 ................................ 15.1 What is the purpose of this part? No change.

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

an interest has been absent?
15.201 ............................ 15.301 What will BIA do with the documents that I pro- Clarifies that BIA will also examine other docu-
vide? ments and information (beyond those provided)
to prepare a complete probate file and will
transfer the probate file to OHA.
15.202 ............................ 15.202 If the decedent owed me money, how do I file a Adds requirements to provide certain additional
claim against the estate? information in support of claim. Changes dead-
line for filing a claim to the conclusion of the
first hearing rather than 60 days of verification
of death.
15.203 ............................ 15.302 What items must BIA include in the probate file? Clarifies what the certified inventory of trust or re-
stricted real property should contain. Adds re-
quirements for supporting documents.
15.303 When is a probate file complete? New section.
15.301 ............................ 15.401 What happens after BIA prepares the probate Redesignated. Deletes notification to interested
file? parties.
15.302 ............................ 15.402 What happens after the probate file is referred to Adds provisions describing how BIA will handle
OHA? claims it receives after it refers the probate file
to OHA.
15.303 ............................ 15.403 What happens after the probate decision is Establishes a 30-day time period to file a written
made? request for de novo review, a request for re-
hearing with the OHA deciding official, or an
appeal. Establishes that BIA will not pay claims,
transfer title, or distribute assets pending a de
novo review, rehearing, or appeal.
15.401 ............................ 15.501 How can I find out the status of a probate? Clarifies that interested parties may contact the
BIA agency or regional office.
15.402 ............................ 15.502 Who owns the records associated with this part? Clarifies that records made by or on behalf of the
United States are owned by the United States.
15.403 ............................ 15.503 How must records associated with this part be Redesignated. Plain language.
preserved?
15.504 Who may inspect these records? Redesignated. Plain language.
15.505 What information must tribes provide BIA to com- Establishes that tribes must provide certain infor-
plete the probate file? mation when necessary to complete a probate
file.
15.506 How does the Paperwork Reduction Act affect New section.
this part?
B. 25 CFR Part 18 [NEW]—Tribal sections to some degree. The C. 25 CFR Part 150—Indian Land
Probate Codes Department added a new subsection (b) Record of Title
to section 18.1 to clarify that a tribal The LTRO determines, maintains, and
This new CFR part addresses the
probate code may provide for a single certifies the title status of Indian land
process for obtaining Secretarial
approval of a tribal probate code and heir rule that differs from the one and provides various land title products
lists factors the Secretary will consider provided in AIPRA. and services to individual Indians,
in reviewing the tribal probate code for The Department also clarified section tribes, and other members of the public
approval. While tribes have had the 18.8(b) (section 18.9 in the preliminary for land held in trust or restricted status
authority to adopt their own tribal draft) to provide that a tribal probate by the United States. Trust status means
probate codes governing descent and code or amendment will be applied to that title is held by the United States in
distribution of trust and restricted lands the estates of decedents who die on or trust for the benefit of an individual
located within the tribes’ respective after the effective date, rather than the Indian or tribe. Restricted status means
reservations or otherwise subject to the date of approval, of the tribal probate ownership of the property is subject to
tribes’ jurisdiction, part 18 clarifies that code or amendment. Federal restrictions against alienation
a tribe must obtain Secretarial approval and/or encumbrance.
Finally, tribal commenters objected to
of the code. This part lists the factors The proposed rule replaces 25 CFR
the Secretary will consider in reviewing section 18.12 of the preliminary draft, part 150, Land Records and Title
a tribal probate code and establishes which provided how tribes should Documents, in its entirety, to provide
when an approved code, repeal, or notify their members of a tribal probate clarification of LTRO’s procedures and
amendment becomes effective. Upon code or amendment, as an inappropriate increase the ability of the LTRO to
approval, this part requires the tribe to incursion into tribal sovereignty. The provide services and products to
notify tribal members of the tribal Department has deleted this section in Indians, tribes, and the public
probate code. its entirety. comparable to those provided by state
Note: A distribution table is not included and local land records offices. The
Changes From Preliminary Draft
here because these provisions are entirely changes are described subpart by
The Department made several plain new. subpart, below.
language changes to the preliminary Subpart A of the proposed rule,
draft, which has resulted in combining Purpose, Definitions, and Public
certain sections and rearranging the Information, clarifies that the
Department will provide access to the Changes From Preliminary Draft is subject to the Privacy Act, Freedom
information in the Indian Land Record Since distribution of the preliminary of Information Act, and other law or
of Title to individual Indians, tribes, draft, the Department made several policy restricting access. In some
and the public, except in those changes to part 150. For example, the instances, portions of a copy of the title
instances where access would violate Department added cross-references to 43 instruments must be redacted under the
law or policy restricting access to such CFR part 30 in proposed sections Privacy Act to eliminate personal
records. The definition of ‘‘Indian land’’ 150.206 and 150.207, relating to information not otherwise included in
is clarified to include only lands in trust corrections of final probate records. The the Indian Land Record of Title.
or restricted status and Federal proposed part 150 also moves two Additionally, the Department may
government-owned land that is under restrict access to reports prepared for
sections regarding how to notify the
the jurisdiction of the BIA, and not land the Secretary. The LTRO performs
LTRO of an error or omission in a
held in fee by Indians or fee land subject functions other than entering
service or product from subpart D to
to the rights, occupancy, and use of information into the Indian Land Record
subpart C, for clarity. (See proposed
Indians. of Title and providing copies of maps
section 150.208). The Department
and title instruments—the LTRO also
Subpart B of the proposed rule, The deleted the section in the preliminary
takes the information from the record,
Indian Land Record of Title Designation draft, ‘‘What certified products does the
reviews and examines and draws
as the Official Record of Indian Land, LTRO produce,’’ and added the section,
conclusions about it in preparation of a
designates the Indian Land Record of ‘‘What services and products may I
report. Where the LTRO prepares a
Title as the official record of title order from the LTRO.’’ Additional report for the benefit of the Secretary,
instruments affecting Indian land. The changes and issues are discussed below. the Secretary has the discretion to
proposed rule clarifies that constructive Terminology: The Department added
restrict access to the report. For
notice of the existence of the title language to clarify several definitions,
example, the public may not obtain a
instrument is provided by recording the including ‘‘interest,’’ ‘‘Land Titles and copy of the Probate Inventory Report
instrument in the Indian Land Record of Records Office,’’ ‘‘title,’’ and ‘‘title until OHA opens the probate case.
instrument.’’ The Department also While access to the Indian Land Record
Title. Recording instruments with other
rewrote the definition for ‘‘tribe’’ to be of Title may be restricted by the
Federal or state offices does not provide
consistent with existing regulatory Freedom of Information Act, Privacy
constructive notice with regard to
definitions for this term. Act, or other law or policy, the
Indian land. Throughout the rule, the Department Department believes that in most cases,
Subpart C of the proposed rule, LTRO has modified the terminology to clarify neither law or policy will restrict access
Procedures and Requirements to Record that the rights of the individual to these records by individual Indians or
Instruments in the Indian Land Record beneficiary and tribe relate to an interest tribes. Generally, information included
of Title, designates the LTRO as the in trust (see also 25 CFR part 179). in the Indian Land Record of Title will
organization within the Federal Effect on Tribes that Compact or be available to the public without
government that has the responsibility Contract LTRO Functions: Several tribal restriction. The Department has also
to maintain the Indian Land Record of commenters requested clarification on clarified that owners of an interest in
Title. This subpart describes the LTRO how this rule affects tribes that perform trust or restricted land within the same
process for receiving and recording title LTRO functions under a contract or reservation, the tribe or any person that
and the process for correcting an error compact. Records maintained by tribes is leasing, using, or consolidating, or is
or omission in an LTRO product or under such a contract or compact are applying to lease, use, or consolidate,
service. part of the Indian Land Record of Title such trust or restricted land or the
Subpart D of the proposed rule, and must be maintained under the same interest in trust or restricted lands may
Services and Products of the LTRO, standards and policies. As such, the obtain the following information
describes the types of services and regulation includes compact and without regard to the Privacy Act and
products offered by the LTRO. Subpart contract tribes under the definition of any exemption contained in the
D also proposes charging fees to certain the ‘‘Land Titles and Records Office’’ for Freedom of Information Act: The names,
grammatical and textual convenience mailing addresses, information on the
parties for the services and products
purposes. The inclusion of compact and location of the parcel, and percentage of
provided by LTRO. The proposed fees
contract tribes under this definition is the parcel owned by each individual.
implement the authority contained in 25
not intended to reflect a limitation on Who Approves Title Instruments: The
U.S.C. 413 and address a Congressional
the sovereignty of these tribes. Certain Department has deleted as unnecessary
directive, in 31 U.S.C. 9701, for agencies
functions performed by the LTRO are the section regarding who the Federal
to begin charging fees that are fair and
inherently Federal functions and can officials are that approve title
reasonable based upon the value of the
only be performed by a government instruments.
service provided by the Federal office.
agency. The inclusion of the compact Fees: Based on input received on the
Under 25 U.S.C. 14b, the Secretary may
and contract tribes in this definition is preliminary drafts, the Department
order that such funds be directed to the
not intended to authorize any such tribe recognizes that there is strong
appropriation account for the LTRO. A to perform any inherently Federal opposition to requiring Indians and
fee schedule will be published as a function. tribes to pay for LTRO services and
notice separate from this proposed rule. Access to the Indian Land Record of products. Several tribal commenters
The proposed rule specifies exceptions Title: Several Indian commenters raised also expressed a preference for charging
to the fee. the issue of access to LTRO information. fees exclusively to non-Indians because
These proposed provisions will Specifically, these commenters pointed they believe that providing LTRO
provide a greater benefit to individual out that they are being denied access to products and services to non-Indians
Indians, tribes, and the public through LTRO information, sometimes under the without charge burdens the LTRO and
clarification of LTRO procedures and auspices of the Privacy Act. The rule diverts monies from other Indian and
will improve LTRO’s ability to serve clarifies that the Indian Land Record of tribal programs. The Department
beneficiaries. Title is a public record but that access welcomes continued feedback on the
proposal for charging fees for LTRO characterized as the slowness of the the information in the Indian Land
products and services. The Department LTRO in responding to requests to Record of Title, the Department is
will continue to review ways to provide services and products. The unable to establish a baseline time
maximize the efficiency and Department is currently undergoing period. Additionally, the Department
effectiveness of the products and implementation of a technological believes that establishing time frames
services provided by the LTRO and system that will provide a centralized within this regulation would limit the
consider whether charging fees can database of the Indian Land Record of flexibility to amend those time frames to
assist with this effort. The Department Title. It is the Department’s belief that reflect changes in processes.
has removed the fee schedule from the this system will increase the LTRO’s
text of the regulation and will publish ability to respond to requests for Distribution Table—25 CFR Part 150
it in a separate notice. This will allow products and services in a more timely
the Department to revise the fees manner. Several tribal commenters The following distribution table
without having to amend the rule. suggested imposing timelines on the indicates where each of the current
LTRO Response Time: During tribal LTRO to respond to requests. Due to the regulatory sections in 25 CFR part 150
consultations, several tribal commenters complexity and variety of title is located in the proposed 25 CFR part
expressed their frustration at what they instruments and reports generated from 150.
150.1 ................. 150.1 What is the purpose of this part? Clarifies purpose by expanding on the services
and products LTRO provides.
150.2 ................. 150.2 What terms do I need to know? Adds several definitions for clarification.
150.4 Do I have to be an Indian or a tribe to obtain New section.
products or services from the Lands Titles
and Records Office?
150.101 Must all title instruments affecting Indian land Designates the Indian Land Record of title as
be recorded in the Indian Land Record of the official record of title instruments affecting
Title? Indian land. Clarifies that recording with the
Indian Land Record of Title serves as con-
structive notice that the title instrument exists.
150.102 Do I have to check with any other governmental Clarifies that the Indian Record of Land Title is
office to find title instruments to Indian land? the source of all recorded instruments.
150.3 ................. 150.201 Who maintains the Indian Land Record of Title? Establishes the LTRO as the office responsible
for maintaining the Indian Land Record of
Title.
150.4 ................. 150.202 Where is the LTRO located? Indicates that the LTRO has locations through-
out the United States, and that Bureau offices
maintain contact information.
150.5 ................. ........................................ ............................................................................. Deleted.
150.6 ................. 150.203 Who submits the title instruments for recording? Clarifies that BIA and other government offices
may submit title documents for recording. De-
letes specific reference to the Administrative
Law Judge submitting probate documents.
150.204 What does the LTRO do with the instruments Restates the steps LTRO takes when it re-
that it receives? ceives documents.
150.205 What are the minimum requirements for record- Clarifies requirements for recording.
ing a title instrument?
150.7 ................. 150.206 What if the LTRO discovers a defect or error in Specifies LTRO procedures to address defects
a document? or errors discovered after recording.
150.207 What if a defect or error in a final probate Restates requirement for LTRO notification to
record cannot be corrected?. deciding official for non-clerical errors in pro-
bate records. Establishes that the corrected
document will be filed in the Indian Land
Record of Title. Deletes reference to ‘‘Super-
intendent’’ and Administrative Law Judges.
150.208 How do I correct an error or omission in a title New section.
instrument or LTRO product or service?
150.209 What instruments qualify for recording in with New section.
the LTRO?
150.210 Does the LTRO maintain the original title instru- New section.
ments?
150.211 May I obtain a copy of the title instrument from New section.
the LTRO?
150.301 What services and products may I order from New section.
the LTRO?
150.8 ................. 150.302 How do I order services and products from the Discusses how to order any of LTRO’s services
LTRO? and products.

150.303 Does BIA charge fees for any of the services New section.
provided by, or products produced by, the
LTRO?
150.304 What will the LTRO do if the instrument con- New section.
tains information that is privileged or pro-
tected?
150.305 How does the Paperwork Reduction Act affect New section.
this part?
150.9 ................. ........................................ ............................................................................. Deleted.
150.10 ............... 150.212 Is there any benefit of obtaining a certified copy Restates that a certified copy can be used in
of the title? place of an original in court or elsewhere.
150.11 ............... 150.3 When can I see land and title information from Clarifies Department policy to allow public ac-
the Indian Land Record of Title? cess to the Indian Land Record of Title. De-
letes provision regarding nondisclosure of
monetary consideration and provision.
D. 25 CFR Part 152—Conveyances Subpart C, Negotiated Sales, Gifts, Provisions applicable to Osage and the
This part establishes the authorities, and Exchanges of Individually Owned Five Civilized Tribes.
policy, and procedures governing the Lands, addresses conveyances of
conveyance of trust or restricted land. individually owned trust or restricted
Amendments reorganize this part to lands. This subpart provides for a tribal The Department made several changes
clarify the different procedures and option to purchase any trust or to the preliminary draft of 25 CFR part
requirements applicable to each type of restricted interests proposed for sale, 152. Many of the changes are intended
conveyance. The reorganized sections gift, or exchange to unrestricted fee to clarify and make terminology
incorporate statutory solutions aimed at status. consistent.
reducing fractionation of interests. One Subpart D, Tribal Parcel Purchase, Definitions: The Department deleted
such solution, consolidation by sale, is allows tribes to purchase tracts of trust the definitions for ‘‘competent’’ and
newly established by AIPRA. or restricted lands where the tribe either ‘‘contiguous’’ and added definitions for
Consolidation by sale allows one or owns at least 50% of the undivided ‘‘fair market value,’’ ‘‘family farm,’’ and
more eligible bidders to consolidate interests in the tract or has obtained the ‘‘owner(s).’’ The Department revised the
highly fractionated land by buying the consent of the co-owners of at least 50% definition for ‘‘Indian.’’
of the undivided interests in the tract, Land Consolidation Plans: The
highly fractionated interests at fair
subject to the right of an individual preliminary draft had included a section
market value through a sale conducted
owner in possession of the tract to stating that a tribal land consolidation
by the Secretary. The amendments also:
• Provide instances where consent of preempt the purchase. plan may identify for purchase only
the trust or restricted co-owner is not lands contiguous to the reservation or
Subpart E, Consolidation by Sale of
required to convey a fractional interest, otherwise subject to tribal jurisdiction.
Highly Fractionated Parcels,
making it easier to consolidate interests; Several tribal commenters objected to
incorporates the new consolidation
• Allow conveyance of land within a the provision stating that the tribal land
mechanism authorized by AIPRA.
tribe’s jurisdiction without tribal consolidation plan may identify for
Consolidation by sale allows eligible
consent where the grantor owns 100% purchase only those lands that are
bidders to consolidate interests in
of the tract; located within or contiguous to the
highly fractionated parcels where
• Allow tribes to purchase fractional tribe’s reservation boundaries, or
certain consents are obtained. This
interests of non-consenting trust and otherwise subject to tribal jurisdiction.
subpart also provides the procedures for
restricted owners at fair market value One tribal commenter stated that
conducting the sale by public auction or
(tribal tract purchases); and because it does not have fixed exterior
sealed bid. There is an ‘‘Application for
• Clarify that the Secretary will have Consolidation by Sale’’ form associated
reservation boundaries, this provision
a lien on income derived from any would prevent it from acquiring other
with this subpart. To obtain a copy of
interest purchased for a tribe under the lands which are in the vicinity of its
the information collection request
Indian Land Consolidation program in separate trust parcels, but which are not
submission to OMB or a copy of the
the amount of the purchase price, until within or contiguous to that tribe’s
form, send your request to the address
the lien is satisfied or removed by the ‘‘reservation boundaries.’’ A few tribal
related to information collections listed
Secretary. commenters stated that this limitation is
in ADDRESSES.
The reorganization divides this part substantive and is not contained in
into various subparts. Proposed subpart Subpart F, Partitions in Kind, ILCA section 2203, and therefore should
A, General Provisions, provides relevant authorizes the Secretary to subdivide not be imposed by regulation. Another
definitions, describes to whom the trust and restricted land with multiple tribal commenter stated that this
Secretary will provide ownership owners into smaller tracts in which the severely limits the unrestricted fee lands
information related to conveyance in interests of the owners are unified or the tribe can purchase. The Department
this part, and establishes the scope of consolidated. This subpart allows any has deleted this restriction.
the regulations. owner of a fractionated interest to apply Additionally, the Department has
Subpart B, Sales and Exchanges of to the Secretary for partition. deleted the definition of ‘‘contiguous’’
Tribal Trust or Restricted Land, Subpart G, Mortgages and Deeds of since this deleted provision was the
addresses sales and exchanges of tribal Trust, allows the Secretary to approve only appearance of the term
land pursuant to an approved tribal mortgages or deeds of trust encumbering ‘‘contiguous’’ in the regulation.
consolidation plan and certain individually owned land under certain Several tribal commenters also noted
exchanges of tribal land. This subpart circumstances. that the tribal land consolidation plan
describes what a tribal consolidation Much of the current regulatory conditions effectively require tribes to
plan is, how to obtain approval of such language is redesignated into subpart H, pre-identify every transaction to be
a plan, and how to obtain approval of Patents in Fee, Certificates of carried out under the plan—whether for
a sale or exchange in the absence of Competency, and Orders Removing sale, purchase, or exchange. These
tribal consolidation plan. Restrictions, and subpart I, Special commenters noted that this requirement
would cause the tribe to submit new Department has deleted this phrase and can occur from 30 days to 90 days. The
plans or plan amendments for every clarified that the Indian tribe with Department has also clarified what
such transaction. These commenters jurisdiction will receive notice and has action it will take if it does not approve
also asserted that this requirement will the option to purchase. the appraisal for a tribal tract purchase.
result in significant price inflation and The preliminary draft provided that
Consolidation by Sale: Several tribal
force tribes to pay more for those tribal consent for conveyance would be
representatives commented on the fact
targeted tracts than would be the case required if a law affecting probate and
that an individual holding the largest
without the proposed pre-identification inheritance rights was in effect. The
ownership interest in the tract, and 20%
requirement. The Department has Department revised this section to
or greater of the ownership interests in
replaced the requirement for specifically clarify that tribal consent of a
conveyance is required if the tribe the tract, has a right to match the
identifying sales, purchases, and
enacted a law requiring consent. highest bid. The Department has not
exchanges with a requirement that the
The preliminary draft required the made any substantive changes to these
plan include a description and map of
the general area of the sales, purchases, tribe to purchase the fractional interest provisions because they are prescribed
and exchanges. where it fails to promptly consent to the by AIPRA. One tribal commenter stated
Several tribal commenters opposed sale. The Department has removed that that the regulation should clarify that
the requirement for approval of a tribal provision from the regulation. both trust and fee interests are subject
land consolidation plan as an intrusion Several tribal commenters questioned to consolidation by sale. The
on tribal sovereignty. Submission of a use of the U.S. Department of Justice Department has clarified this in section
tribal land consolidation plan is (DOJ) title standards. The Department 152.402. Another tribal commenter
optional and within the tribe’s deleted this reference and instead refers asked whether a fee interest owner
discretion. However, an approved land generally to Department of the Interior would be able to trigger a consolidation
consolidation plan will allow a tribe to boundary standards. by sale. Proposed section 152.403
sell parcels of its trust land in Several tribal commenters objected to entitles only ‘‘eligible bidders’’ to
connection with an overall plan to the proposed provision allowing the submit applications for consolidation by
consolidate its land holdings and/or Secretary to liquidate off-reservation sale. A fee owner may submit an
decrease fractionation. Pursuant to interests and allow a tribe to purchase application if he or she meets one of the
federal law, sales under an approved an on-reservation interest where the categories for ‘‘eligible bidder.’’ Finally,
consolidation plan may also be at transfer creates a different pattern of the Department revised the definition of
slightly less than fair market value. If jurisdiction or aggravates existing ‘‘bona fide’’ and made other
the tribe has no plans to sell its trust jurisdictional conflicts. This commenter clarifications.
land, though, there is no need for it to stated that this is contrary to the Federal
Partition in Kind: The Department
prepare or submit a land consolidation policy of Indian self-determination.
simplified section 152.501, establishing
plan for approval. Another commenter stated that a
distinction should be made between what tracts may be partitioned and
Finally, the Department clarified the deleted the provision excluding
process for sales and exchanges with a trust interests and restricted interests
because tribes have a jurisdictional partitions of restricted land in Alaska.
land consolidation plan and without a
responsibility upon acquisition of the The preliminary draft included a
land consolidation plan.
Sales and Exchanges: The Department beneficial interest in trust parcels. The provision at section 152.606(b) stating
revised section 152.210 (section 152.211 Department has deleted this section. that the tribe will not have the right of
of the preliminary draft) to clarify that Tribal Tract Purchases: Two tribal first refusal where encumbered land is
a grantor may waive the right to be commenters expressed confusion over purchased as a result of a foreclosure or
notified of fair market value only if the the provision stating that tribal tract sale proceeding. Several tribal
grantee is Indian, among the other purchase authority does not extend to commenters asserted that the tribe
criteria. The Department also deleted ‘‘purchases that are limited to any such should have the right to purchase
section 152.212 of the preliminary draft, fractional interests held in unrestricted interests that are to be foreclosed and
addressing requirements for appraisals fee status.’’ The Department has deleted are to be taken into unrestricted fee
to determine fair market value because this provision and clarified that tribal status. The Department has deleted this
the proposed draft instead incorporates tract purchases may include provision and instead states that title
the requirements into the new definition conveyances to the tribe of interests will be taken in accordance with laws
of ‘‘fair market value.’’ held in fee and that fee interests are applicable to the foreclosure or sale
Several tribal commenters questioned included in the calculation to determine proceeding.
the meaning of the provision, ‘‘trust or whether the tribe owns at least 50% of Distribution Table—25 CFR Part 152
restricted land may only be conveyed to the tract. With regard to providing
a grantee in unrestricted fee status, notice of a tribal tract purchase to The following distribution table
where all of the trust or restricted owners whose whereabouts are indicates where each of the current
interests in the tract are being unknown, the Department has regulatory sections in 25 CFR part 152
conveyed’’ in section 152.205 (section lengthened the time before the closing is located in the proposed 25 CFR part
152.206 of the preliminary draft). The of the sale that publication in a paper 152.
Current New citation Title Remarks

citation
152.1 What does this part do? New section.

152.1 ............ 152.2 What terms do I need to know? Adds and amends definitions.
152.3 Will the Secretary provide ownership information? New section.
152.4 To whom will the Secretary provide ownership informa- New section.
tion?
152.5 Which subparts do not apply to Alaska? New section.

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

152.212 How does the Secretary decide to approve a nego- New section.
tiated sale, gift, or exchange?
152.213 How does the negotiated sale or exchange occur? New section.
152.214 When is a negotiated sale, gift, or exchange effective? New section.
152.215 How does an Indian Land Consolidation Program lien New section.
attach?

citation
152.216 How is an Indian Land Consolidation Program lien re- New section.
moved?
152.217 When can a co-owner acquire an interest previously New section.
acquired on behalf of the tribe?
152.218 What if there are liens or other encumbrances on the New section.
lands to be conveyed?
152.301 What lands are covered by this subpart? New section.
152.302 What transactions are covered by this subpart? New section.
152.303 How does a tribe apply for a parcel purchase? New section.
152.304 How and when will owners be notified of an application New section.
for tribal parcel purchase?
152.305 Can an individual owner preempt and succeed a tribe’s New section.
right to purchase?
152.306 How and when will the Secretary review an application New section.
for parcel purchase?
152.307 How and when will the conveyance instrument be exe- New section.
cuted?
152.401 What terms do I need to know? New section.
152.402 What lands are subject to consolidation by sale? New section.
152.403 How do I apply to consolidate a parcel by sale? New section.
152.404 What must the Secretary do before acting on an appli- New section.
cation for consolidation by sale?
152.405 What consents are necessary for a consolidation by New section.
sale?
152.406 How will the Secretary notify owners of the consolida- New section.
tion proceeding?
152.407 What action does the Secretary take on comments or New section.
objections?
152.408 What happens if the Secretary orders a new appraisal? New section.
152.409 How can an owner appeal a consolidation by sale pro- Limits discussion of advertising to consolidation by
ceeding? sale.
152.26 .......... 152.410 How will the Secretary notify owners of a sale after ap- Limits discussion of advertised sale to consolidation by
peals have been decided? sale.
152.27 .......... 152.411 Who may participate in an auction or sealed bid sale? New section.
152.412 How does a tribe reserve its right to match the highest New section.
bid?
152.28 .......... 152.413 How will the Secretary determine the successful bid- New section.
der?
152.29 .......... 152.414 What happens if no bid matches the fair market value? Deletes provisions allowing the Secretary to reject bids.
152.30 .......... .................... .......................................................................................... Deleted.
152.415 When must the highest bidder pay for the purchase? New section.
152.416 How will proceeds be distributed? New section.
152.417 Is Federal financial assistance available to support a New section.
bidder’s purchase?
152.418 What title is acquired? New section.
152.31 .......... .................... .......................................................................................... Deleted.
152.32 .......... 152.219 How does a transaction affect collection of construction Plain language.
costs for irrigation projects?
152.33 .......... .................... .......................................................................................... Deleted. See subpart F.
152.34 .......... .................... .......................................................................................... Deleted. See subpart G.
152.35 .......... .................... .......................................................................................... Deleted.
Subpart F—Partitions in Kind
152.501 What lands are covered by this subpart? New section

152.502 When does this subpart apply? New section.
152.503 How can an owner initiate a partition action? New section.
152.504 How will we notify the applicant’s co-owners of an ap- New section.
plication for partition?
152.505 How and when will we review an application? New section.
152.506 When will we execute the conveyance instruments? New section.
Subpart G—Mortgages and Deeds of Trust
152.601 What does this subpart do? New section.

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

citation
179.1 ............ 179.1 What is the purpose of this part? Clarifies that these regulations do not apply to any Fed-
eral statutory rights to purchase.
179.2 ............ 179.2 What terms do I need to know? Adds several definitions.
179.3 ............ .................... .......................................................................................... Deleted.
179.3 Who can hold a life estate? New section.
179.4 Who can be the measuring life for a life estate? New section.
179.5 Who can be designated as a future interest holder? New section.
179.6 Who can be members of a class? New section.
179.7 How are interest holders determined if the conveyance New section.
document or order contains conditions?
179.8 How are members to be determined if there is an open New section.
class?
179.9 What are the privileges of a life tenant? New section.
179.10 What is the life tenant’s responsibility to the remain- New section.
derman?
179.11 How can a future interest holder stop the life tenant New section.
from damaging his/her interest and substantially di-
minishing its value?
179.4 ............ 179.12 How will the Secretary distribute income and principal Incorporates AIPRA provisions for life estates created
between the life tenant and the remainderman? after AIPRA’s effective date, providing that these life
tenants are entitled to all income, principal, contract
bonuses, and royalties.
179.5 ............ 179.13 How will the value of a current life estate and remain- Replaces existing life estate value tables with a ref-
der be determined? erence to one table. Deletes gender as factor affect-
ing life estate values.
179.14 How does a life estate terminate? New section.
179.15 What if I do not want an interest in a life estate? New section.
179.16 Why do I need to notify the Secretary about the death New section.
of a life tenant?
179.17 How will term estates be treated? New section.
179.6 ............ .................... .......................................................................................... Deleted.
F. 43 CFR Part 4, Subpart D lands for the purpose of consolidating under the new subheading
Currently, subpart D of 43 CFR part 4 ownership. Renunciations in favor of a ‘‘Consolidation and Settlement
addresses how OHA adjudicates the designated recipient enable heirs or Agreements’’ (formerly, this subheading
probate file that BIA prepares under 25 devisees that would have inherited a included only consolidation
CFR part 15. The amendments remove trust or restricted interest to renounce agreements). Provisions related to tribal
the probate hearing procedures to a new that interest in favor of another eligible purchase of interests under special
part 30. See the discussion of these party. The availability of the option to statutes (sections 4.290 through 4.304 of
changes below. purchase a decedent’s trust or restricted the preliminary draft) have been moved
interests has been expanded to allow to sections 30.260 through 30.274. The
G. 43 CFR Part 30 tribes, eligible family members, and co- Department also added a few sections
The amendments make many owners of trust or restricted interests to under the ‘‘Renunciation of Interests’’
administrative changes to the part to exercise the option. and ‘‘Summary Probate Proceedings’’
better meet plain language requirements subheadings for clarity.
and make the OHA probate process as The Department and tribal
transparent as possible. In addition, the Because a significant number of issues commenters identified potential
amendments make several substantive on 43 CFR part 4 were identified in confusion regarding references to
changes. Amendments to this part tribal comments, the following ‘‘allocated market value,’’ ‘‘estimated
clarify the two types of probate discussion addresses the issues by market value,’’ and ‘‘appraised market
proceedings (summary and formal), subheading in the new 43 CFR part 30. value.’’ The Department has addressed
simplify the deadline for filing a claim Overall: The Department reorganized this issue by deleting references to
against an estate, and clarify the some sections in this subpart to provide ‘‘allocated’’ and ‘‘estimated’’ market
authority of administrative law judges, a better logical flow. For example, the value and replaced them with
Indian probate judges, and attorney Department moved former sections ‘‘appraised’’ market value.
decision makers. 4.382 and 4.383, related to the omission Several tribal commenters noted that
Other amendments reduce the impact and improper inclusion of property in while the preliminary drafts established
of fractionation on trust and restricted an estate, to sections 30.126 and 30.127 timelines for filing an appeal, they did
lands and expand land consolidation under the ‘‘Judicial Authority and not impose any timelines on OHA to
options by incorporating administrative Duties’’ subheading. Additionally, act. For example, several tribal
procedures to implement AIPRA former section 4.216, related to what commenters suggested placing a
provisions related to consolidation happens when a person dies without a deadline on OHA for designating a case
agreements, renunciations in favor of a will and has no heirs, has been moved as appropriate for summary or formal
designated recipient, and purchase to section 30.254 under the hearing and assigning a case to a judge
options at probate. Consolidation ‘‘Miscellaneous’’ subheading. Section 10 days after receiving the file from BIA.
agreements permit heirs and devisees to 4.217, related to settlement agreements, Other tribal commenters suggested
exchange interests in trust or restricted has been moved to section 30.150, imposing a timeframe on notifying
potential heirs that a probate case has sale at probate and distribution of Purchase at Probate: The Department
been assigned to a judge. Another tribal interests will occur. The Department clarified provisions relating to purchase
commenter recommended setting time also clarifies in proposed subsection (i) at probate and clarified that, in
periods for holding the hearing and that the judge first determines whether accordance with AIPRA, an appraisal
issuing a final decision in a probate the tribe has jurisdiction over the trust must be completed to determine market
case. The Department has determined or restricted property at issue. value. The Department also clarified
that, given the variation in complexity The Department clarified the standard provisions relating to renunciations to
and resources available, establishing set against which a judge may determine a clarify who may receive a renounced
timelines for judges would not be person to be dead based upon an interest in trust or restricted land, and
feasible. extended unexplained absence. The who may receive a renounced interest in
Definitions: In response to tribal revisions require credible evidence to trust personalty. The Department also
comments, the Department modified the establish, by a clear and convincing changed the previous provision that had
current definition of ‘‘interested parties’’ standard, that the person has had no stated the renunciation would not be
to ensure that tribes and co-owners with known contact with any person or entity valid if the designated recipient of a
the option to purchase are included in during the six-year period preceding the renounced interest refused to take the
the definition. Several tribal hearing. (See proposed section 30.124). interest. Instead, this provision now
commenters were concerned that the Claims: Tribal commenters pointed states that the renounced interest will
definition in the preliminary draft was out that deadlines for filing claims were pass to the heirs of the decedent as if the
too narrow, and would not provide both unclear and potentially conflicting. person renouncing the interest had
notice to persons with an interest. The The Department significantly amended predeceased the decedent.
revised definition includes tribes and the provisions related to deadlines for Summary Probate Proceedings: The
persons with the option to purchase at filing claims to simplify the deadline Department clarified what summary
probate and all co-owners. (See and make consistent with 25 CFR part probate proceedings are and simplified
proposed section 30.102). 15. The deadlines established in the the criteria for when a summary probate
Additionally, the Department revised proceeding is appropriate (i.e., when the
preliminary draft complicated the
several definitions included in the estate is ‘‘cash only’’ and the estate’s
matter of determining timeliness of
preliminary draft to ensure consistency value does not exceed $5,000 on the
claims and introduced both factual and
with AIPRA and 25 CFR part 15. The date of death). The Department deletes
Department amended the definition of legal issues, including choice of law
issues, to determine when the creditor references to consolidation agreements
‘‘child’’ to include adopted children, in
was chargeable with notice. and purchases at probate with regard to
response to tribal comments that
Additionally, the preliminary draft summary probate proceedings because
biological and adopted children should
continued the current requirement that such agreements would not apply to a
be treated equally in the distribution of
the creditor file with BIA rather than cash-only estate.
property at probate. The Department
also amended other terms for precision: OHA. This requirement is no longer Formal Probate Proceedings: In
for example, it changed ‘‘trust financial appropriate since BIA no longer response to tribal concerns regarding
assets’’ and ‘‘cash assets’’ to ‘‘trust conducts any probate hearings. For this notice of a tribe’s right to purchase, the
personalty’’ to encompass both cash and reason, the Department is allowing Department amended section 4.337 of
securities; it changed ‘‘beneficiaries’’ to filing of claims with BIA while the the preliminary draft to require notice to
‘‘devisees,’’ which is a more precise probate file is being prepared, or with the tribe of probates of estates with trust
term including only those who receive the OHA once the probate file has been or restricted land under the tribe’s
under a will; it revised the definitions transferred to the OHA. The Department jurisdiction (see proposed section
for ‘‘per stirpes’’ and ‘‘de novo’’ for has also clarified what must be included 30.213).
clarity; and it deleted the placeholders in a claim and eliminated the The Department has deleted the
for definitions for ‘‘residing on’’ and requirement for filing in triplicate. question related to the judge’s authority
‘‘pretermitted spouse,’’ having Additionally, the Department deleted to require a person to appear at a
determined that meanings for these the section related to priority and hearing (section 4.334 of the
terms are subject to judicial general claims (what had been sections preliminary draft) because, while the
determination based on fact-specific 4.245 and 4.248 in the preliminary judge does have this authority, the
circumstances. draft). judge’s subpoena authority is broader
Commencement of Probate Settlement and Consolidation than the question and answer indicates.
Proceedings: The Department clarified Agreements: The Department placed The section related to notice of a
in section 30.114 that OHA will provide provisions relating to settlement requirement to appear at a hearing has
notice of the formal or summary probate agreements with those relating to also been deleted to avoid confusion.
proceeding and eliminated the consolidation agreements. Revisions to With regard to contests of self-proved
requirement for BIA to notify potential the sections on consolidation wills, the Department has added a
heirs and devisees when it forwards the agreements now specify that there are provision allowing the judge to order
probate file to OHA for consideration two types of consolidation agreements, the deposition of a witness at a location
because sufficient notice is provided by one including only property in the reasonably near the witness’s residence,
OHA upon designation of the case for a estate, and another including both where no attesting witness resides near
formal or summary probate proceeding. property in the estate and other property the place of the hearing.
Judicial Authority: The Department already owned by the heirs or devisees. The Department has also clarified that
amended section 4.220 of the The Department added a section the official record of the probate case
preliminary draft, relating to the judge’s allowing parties to a settlement or and decisions contain settlement
general authority. It is now designated consolidation agreement the ability to agreements, consolidation agreements,
as section 30.120. In proposed waive valuation of trust property, given renunciations and acceptances of
subsection (f), the Department clarifies that the parties to the agreement may renounced property, and additional
that the probate decision and order, not have non-economic reasons for entering items where interests are sold at
the terms of the sale, determine how the into the agreement. probate.
Miscellaneous: The section addressing judge may order the payment of fees to regulatory sections in 43 CFR part 4,
the rights of inheritance of someone a guardian ad litem. subpart D, is located in the proposed 43
who kills the decedent has been revised CFR part 30 and in proposed revisions
Distribution Table—43 CFR Part 4,
to comply with AIPRA. The Department to 43 CFR part 4.
Subpart D
also clarifies that a judge may allow fees
for attorneys representing interested The following distribution table
parties, but not creditors and that a indicates where each of the current

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

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

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

ations, consolidation and settlement agreements,
and purchases at probate.
4.240(b) ................. 30.237 What notice of the decision will the judge provide? Changes time period from 60 to 30 days.
4.241(a) ................. 30.238 May I file a petition for rehearing if I disagree with Changes time period for filing petition from 60 to 30
the judge’s decision in the formal probate hearing? days. Requires judge to forward copy of petition to
affected agencies.

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

4.322 ..................... 4.326 Disposition of the record. Plain language.
V. Public Comments to publication of this proposed rule that VI. Procedural Requirements
During the period prior to this are specific to one or more regulations
A. Regulatory Planning and Review
publication, from December 27, 2005 to or regulatory sections are addressed in (Executive Order 12866)
March 31, 2006, the Department the Part-by-Part Analysis, below.
Executive Order 12866 (58 FR 51735,
received correspondence (e-mails, B. Directions for Submitting Comments October 4, 1993) requires Federal
letters, and faxes) from tribes and agencies taking regulatory actions to
individual Indians. Of these, the The regulatory amendments proposed determine whether that action is
majority addressed at least one of the in this rulemaking include substantive ‘‘significant.’’ Agencies must submit
regulations being proposed today. The changes streamlining and standardizing regulatory actions that qualify as
remaining addressed only those Department procedures to better serve ‘‘significant’’ to the U.S. Office of
regulations that were part of the beneficiaries and incorporating statutory Management and Budget (OMB) for
December 27, 2005 package sent to the law. The amendments also include review, assess the costs and benefits of
tribes, but are not part of this proposed revisions that are simply administrative the regulatory action, and fulfill other
rule. The Department has stored these in nature, including changes to better requirements of the Executive Order. A
comments so that it can review them meet plain language requirements, ‘‘significant regulatory action’’ is one
when it addresses those remaining defining acronyms, and updating that is likely to result in a rule that may
regulations. personnel and agency titles. Both tribal meet one of the following four criteria:
These comments raised several issues and non-tribal members of the public (1) Have an annual effect on the
that the Department considered in are invited to make substantive economy of $100 million or more or
preparing the drafts for publication as a comment on any of these changes, adversely affect, in a material way, the
proposed rule. A summary of those whether they be with respect to economy, a sector of the economy,
issues that were considered in substantive or administrative changes. productivity, competition, jobs, the
developing the proposed regulatory environment, public health or safety, or
language is provided under a Two copies of written comments
should be submitted to the address State, local, or tribal governments or
subheading ‘‘changes to preliminary communities;
drafts’’ under the discussion of each indicated in the ADDRESSES section of
this notice. Comments may also be (2) Create a serious inconsistency or
part in the Part-by-Part Analysis. There otherwise interfere with an action taken
will also be a 60-day public comment telefaxed to (202) 208–5320 or
or planned by another agency;
period following this publication. submitted by electronic mail (‘‘email’’)
(3) Materially alter the budgetary
Subsection B provides directions for to Michele_F_Singer@ios.doi.gov. For
impact of entitlements, grants, user fees,
submitting written comments and comments submitted electronically, or loan programs or the rights and
information on upcoming tribal please include the number 1076–AE59 obligations of the recipients thereof; or
consultations addressing this in the subject line of the message. All (4) Raise novel legal or policy issues
rulemaking. comments received will be available for arising out of legal mandates, the
public inspection at the Department of President’s priorities, or the principles
A. Comments Received Prior to This the Interior, 1849 C Street, NW.,
Publication set forth in the Executive Order.
Washington, DC 20240. All written OMB has determined that the rule is
The Department provided tribal comments received by the date not a significant rule under Executive
leaders with preliminary drafts of this indicated in the DATES section of this Order 12866 because it is not likely to
proposed rule in December 2005 and notice and all other relevant information result in a rule that will meet any of the
requested comment by the end of March in the record will be carefully assessed four criteria.
2006. Additionally, the Department held and fully considered prior to (1) The rule will not have an annual
two pre-publication tribal consultation publication of the final rule. Any effect on the economy of $100 million or
sessions in February 2006 and March information considered to be more or adversely affect, in a material
2006 to obtain input on the preliminary confidential by the commenter must be way, the economy, a sector of the
drafts. so identified and submitted in writing. economy, productivity, competition,
As previously mentioned, the The Department of the Interior reserves jobs, the environment, public health or
Department received an overwhelming the right to determine the confidential safety, or State, local, or tribal
number of comments during the status of the information and to treat it governments or communities.
Albuquerque tribal consultation according to our determination (see 10 This rule will not have an annual
regarding the volume of regulatory text CFR 1004.11). effect on the economy of $100 million
and number of preliminary draft or more, as described below. The
regulations. In response to these The Department has scheduled an
following discussion individually
comments, the Department has decided additional consultation meeting in addresses each Code of Federal
to first focus on those regulations Rapid City, South Dakota on July 27, Regulations (CFR) part and significant
required for, or closely related to, 2006, from 8 a.m. to 5 p.m., at the Best changes within each part, where
implementation of AIPRA. These Western Ramkota Hotel and Conference appropriate. Within the discussion of
regulations are being published today. Center. The Department also plans to each CFR part is a brief statement of the
These regulations are a priority for the host two additional consultation major changes, the baseline (i.e., the
Department because they are necessary meetings in Billings, Montana on current state of affairs), an analysis of
to implement AIPRA, which became August 8, 2006, from 8 a.m. to 5 p.m., the economic effect of the change in
fully effective on June 20, 2006. The at the Sheraton Billings Hotel and in comparison to the baseline alternative,
remaining regulations that were Minneapolis, Minnesota on August 10, and a brief conclusion.
distributed as preliminary drafts will be 2006, from 8 a.m. to 5 p.m., at the
re-examined and consulted on at a Ramada Mall of America. All tribal and 25 CFR Part 15
future date. non-tribal persons interested in this This part governs the processing of
Issues raised during tribal rulemaking are encouraged to probate estates by BIA. Amendments
consultations and in the time leading up participate in these consultations. will ensure that the BIA compiles
sufficient information into the probate and clarify what documents qualify as less than fair market value, the
file so that when BIA passes the probate title instruments. Currently, the attachment and removal of Indian Land
file on to OHA, OHA can properly regulations do not clearly define the Consolidation Program liens, and the
administer the probate estate. The procedures, products, and services of procedures for mortgages and deeds of
baseline for this analysis is the existing the LTRO. Finally, the amendments trust.
part 15, which does not incorporate provide a schedule of fees for non- The baseline for this analysis is the
requirements for certain items of probate LTRO products and services current part 152, which does not
information to be included in the that will be charged. incorporate AIPRA’s provisions
probate file. Those parts of the regulation that advancing consolidation goals. The
The Secretary has sole statutory describe the processes, services, and current part 152 allows for partition of
authority to probate Indian estates. 25 products of the LTRO will have no inherited allotments but does not extend
U.S.C. 372; First Moon v. White Tail & effect on the economy. The amendments partition to other tracts of trust or
United States, 270 U.S. 243, 46 S. Ct. that establish fees for LTRO services and restricted land or tracts in which
246, 70 L. Ed. 565; United States v. products are comparable to those fees fractional interests are held in
Bowling, 256 U.S. 484, 41 S. Ct. 561, 65 charged by local governments for the unrestricted fee status.
L. Ed. 1054; Lane v. United States, 241 comparable services and products. a. Tribal Land Consolidation Plans
U.S. 201, 36 S. Ct. 599, 60 L. Ed. 956; These amendments merely redistribute
Hallowell v. Commons, 239 U.S. 506, 36 the costs by requiring fees normally Amendments to part 152 add
S. Ct. 202, 60 L. Ed. 409. Bertrand v. paid for by the public at large to be provisions regarding tribal land
Doyle, 36 F.2d 351 (10th Cir. 1929). As borne by the individuals, other than the consolidation plans by providing that
such, it is imperative that the Secretary excepted categories of individuals, the Secretary will approve only: (1)
have all the information necessary to directly benefiting from the service or Those exchanges and negotiated sales of
properly determine the heirs and product. Therefore the effect, if any, on tribal land that are made pursuant to an
distribute estate assets. The alternative the economy resulting from these approved land consolidation plan and
to these amendments (i.e., the baseline) amendments is minimal. in which the tribe receives at least 90%
would deprive OHA of the information For these reasons, the amendments to of the fair market value or greater; and
it needs to accurately identify what part 150 will not have an effect on the (2) those exchanges made in the absence
property is part of the estate, who the economy. of a land consolidation plan in which
heirs and devisees are, and how the the tribe receives the fair market value
property should be distributed among 25 CFR Part 152 or greater. Part 152 restricts the tribe’s
the heirs and devisees. The recently Amendments to this part reorganize use of consideration received from
enacted AIPRA amendments to ILCA, 25 subparts and sections within subparts negotiated sales and exchanges in
U.S.C. 2201 et seq., affects the for clarity. Procedures for each of the accordance with a tribal land
determination of how property should following conveyances are now consolidation plan to the purchase of
be distributed among the heirs and clarified: other lands as described in the tribal
beneficiaries by allowing certain • Allowing for conveyances at less consolidation plan.
persons to purchase interests in than fair market value under certain These changes from the existing
property at probate and consolidation circumstances (see § 152.109); regulation will assist tribes in reducing
agreements, and affecting who can • Tribal option to purchase where fractionation and strengthening their
inherit a small fractional interest. land is proposed to be conveyed in land base. A tribal consolidation plan
AIPRA therefore directly affects the unrestricted fee (see § 152.206); must include the following elements: a
determinations that OHA will make and • Conveyances of fractional interests description of the land; maps depicting
requires additional information to be without tribal consent under certain the land to be conveyed and interests to
included in the probate file. circumstances. Also, tribal options to be purchased; an explanation of how the
The primary benefit of the purchase interests being sold, gifted or plan will reduce fractionation; and an
amendments is that they ensure that exchanged by individual Indians where appropriate tribal authorization. The
OHA will have the information it needs the tribe has enacted a law that imposes cost to the tribe of putting together a
in the probate file to adjudicate Indian such a requirement (see § 152.209); tribal consolidation plan is estimated to
estates. Because this part addresses only • Tribal tract purchases of fractional be $2,500. The Secretary is encouraging
internal processes, and does not impose interests of non-consenting owners (see all Federally recognized tribes to
any enforceable obligation on persons Subpart D at § 152.302); and prepare a tribal land consolidation plan.
outside the BIA, there is no effect to the • Eligibility for conveying trust and Thus, the total cost resulting from the
outside economy. Amendments to this restricted land (see § 152.203). plan requirement for each of the 562
part focus on the BIA’s procedures in Additionally, the amendments tribes will be $1.4 million. However,
compiling a complete probate file, and implement ILCA policy goals and tribes will likely prepare and submit the
addressing what should be included in AIPRA provisions allowing for: plans over a period of at least ten years,
that file. No economic impact is • Conveyances in accordance with resulting in an annual cost to tribes of
associated with these internal processes. tribal land consolidation plans (see $140,000. This cost is slightly
subpart B at § 152.101); overestimated because some tribes
25 CFR Part 150 • Consolidation of highly fractionated already have a land consolidation plan.
The revised Part 150 provides tracts by purchase of interests at fair
clarification of the LTRO’s procedures market value (see subpart E at b. Tribal Option To Purchase Where
and increases the ability of the LTRO to § 152.401); and Land Is Conveyed in Unrestricted Fee
provide services and products to • Partition of fractionated lands to The amendments grant tribes the
Indians, tribes, and the public. unitize interests (see subpart F at opportunity to purchase trust or
Specifically, the amendments describe § 152.501). restricted lands being proposed for
the LTRO process for receiving and The amendments also detail eligibility transfer out of trust or to unrestricted
recording title instruments, clarify what for conveying trust and restricted land, status. The benefit of this provision is
services and products LTRO provides, conveying trust and restricted land at that it strengthens tribal land holdings.
There are no apparent costs related to parcels. In order to consolidate by sale, information regarding the fair market
this option, as the grantor will receive an eligible applicant must obtain certain value. This will increase the ability of
consideration for the interest being consents including consent of the individuals to sell their land as they
conveyed. Additionally, an exception is owners of at least 50% of the undivided choose. Additionally, these
provided for those instances where the interests in the parcel. Consolidation of amendments make land interests more
interest is part of a family farm. highly fractionated parcels by sale will marketable by reducing the restrictions
increase individual Indians’ and tribal on transfer. The cost of obtaining
c. Consent for Conveyances
land holdings, providing them with information on fair market value was
The amendments provide that an greater economic power and use of land. already required, so the amendments
owner may convey his or her fractional As stated above, individual interests add no new costs.
interest without the consent of co- held in trust and restricted status are
owners and that owners of 100% of the subject to restrictions on transfer. The i. Attachment and Removal of Indian
interests in a tract do not need the cost of restricting free transfer without Land Consolidation Program Liens
consent of the tribe. These provisions the approval of the Secretary or tribe These amendments implement AIPRA
grant individuals the right to control affects the value of the interest. The provisions regarding the Indian Land
conveyances of their interests. The value of land is not affected by the Consolidation program liens, in which a
benefit of these provisions includes percentage of consent required, except lien in the amount of the purchase price
strengthening individual Indians’ to the degree that the time in which attaches to income derived from any
abilities to convey and consolidate transfer occurs may be lessened by interest purchased through the Indian
fractional interests. The co-owners share reducing the percentage required, thus Land Consolidation Program. This
in this benefit. Additionally, increasing marketability. provision has no apparent costs as the
marketability of the land interests is Allowing consolidation by sale is lien is removed upon satisfaction.
increased with removal of the consent expected to reduce the proportion of
requirement. There is no cost to these j. Mortgages and Deeds of Trust
highly fractionated interests. The
provisions because the land remains in cumulative transfers of property These amendments detail existing
trust status. achieved via consolidation by sale is not procedures by which the Secretary
These amendments also require tribal expected to impact the economy. approves mortgages or deeds of trust
consent for conveyance of a fractional However, economic benefits are encumbering individually owned land,
interest where the tribe has an approved expected to accrue by allowing owners where all of the trust or restricted
tribal probate code restricting the greater economic power and control of interests in a tract are being encumbered
inheritance rights of the grantee. This the use of their land. and made subject to foreclosure or sale
provision strengthens tribal control over in the event of a default on the loan
land within its jurisdiction. No apparent f. Partition in Kind being secured by the approved
costs are associated with this provision. This subpart authorizes the Secretary document. There is no quantifiable
to subdivide trust and restricted land effect on the economy because the title
d. Tribal Tract Purchases with multiple owners into smaller tracts remains in trust even if foreclosure
The tribal tract purchase amendments in which the interests of the owners are occurs.
implement provisions of AIPRA unified or consolidated, where the Cumulatively, part 152 will not have
authorizing the Secretary to convey the owners have been unable to accomplish a significant or quantifiable effect on the
fractional interests of any non- such a partition in kind by exchange of economy.
consenting trust and restricted owners deeds. Any owner of a fractional interest
to a tribe, where the tribe owns at least 25 CFR Part 179
may apply to the Secretary for a
50% of the trust or restricted interests partition. This new subpart will provide Amendments to part 179 make two
in the tract or has obtained the consent owners with greater control over their primary changes with potential to affect
of the owners of at least 50% of such land; there is no apparent effect on the the economy:
interests. economy. • Incorporates AIPRA’s requirement
These provisions increase tribes’ that life estates after June 20, 2006, will
ability to obtain and consolidate g. Eligibility for Conveying and be ‘‘without regard to waste,’’ meaning
fractional interests. Ultimately, this will Receiving Individually Owned Interests that the life tenant is now entitled to
grant the tribes more economic power in Trust or Restricted Status receipt of all income—including rents
through land holdings. Additionally, The amendments clarify that and profits, such as contract bonuses
individual interests held in trust and individual Indians (or their guardians, and royalties, and the interest on
restricted status are subject to etc.) may convey lands and that only invested principal—from the land.
restrictions on transfer. The cost of tribes, individual Indians, and other co- However, the testator can still specify in
restricting free transfer without the owners in trust or restricted status may the conveyance document distributions
approval of the Secretary or tribe affects acquire individually owned trust or to the life tenant and remaindermen
the value of the interest. The value of restricted land. This clarification is different from those established by
land is not affected by the percentage of made to ensure that individual Indians AIPRA.
consent required, except to the degree without a tribal land base are permitted • Changes the discount rate to make
that the time in which transfer occurs to convey and receive interests in trust it consistent with the Internal Revenue
may be lessened by reducing the or restricted status. This provision will Service’s valuations of life estate, which
percentage required, thus increasing have no economic effect. will generally provide the
marketability. remaindermen with more value than
h. Conveyance of Individually Owned under the current 6% discount rate.

e. Consolidation by Sale of Highly Interests at Less than Fair Market Value The existing part 179 provides that
Fractionated Tracts The amendments remove restrictions the life tenant will have the rights to all
Consolidation by sale applies to trust on conveying individually owned rents and profit, as income, from the
and restricted lands, on or off interests at less than fair market value, estate, but did not provide that such
reservation, that are highly fractionated as long as the grantor is provided with rights were ‘‘without regard to waste.’’
Therefore, the existing part 179 required been established by AIPRA. Implementation of this rule will not
the life tenant to ensure that it did not Additionally, the current time period for create any serious inconsistencies or
diminish the estates of the filing requests for de novo review and otherwise interfere with an action taken
remainderman in its pursuit of rents and rehearing is 60 days. or planned by another agency because
profits. Additionally, the existing part Neither the existing part 4 nor the the Department is the only agency with
179 required contract bonuses to be split amendments to part 4 affect the authority for handling Indian trust
one-half each to the life tenant and economy. Because these provisions management issues. Additionally, this
remainderman, whereas now the life relate to the adjudication of probate rule will standardize processes within
tenant is entitled to the full amount of estates and will not affect the amount of the Department, to guard against
the contract bonus. money and property within each estate internal inconsistencies.
The first primary change to part 179 that is distributed, nor the number of (3) This rule will not materially alter
is necessary to reflect the AIPRA section estates that must be probated, they have the budgetary impact of entitlements,
establishing that life estates will be no effect on the economy. For these grants, user fees, or loan programs or
determined ‘‘without regard to waste,’’ reasons, amendments to 43 CFR part 4, the rights and obligations of the
meaning that the life estate holder is subpart D, and the new 43 CFR part 30 recipients thereof.
entitled to the receipt of all income, will not affect the economy. (a) The revisions 25 CFR part 15
including bonuses and royalties, from address what must be included in a
such land, to the exclusion of New 25 CFR Part 18 (Tribal Probate
probate package and describe how to
remaindermen. See 25 U.S.C. 2201(10), Codes)
file a claim against an estate, but do not
2205(a)(3), 2206(a)(2). These The new CFR part addressing tribal address entitlements, grants, user fees,
amendments comply with the probate codes implements provisions of or loan programs. Therefore, revisions to
provisions of AIPRA with respect to life ILCA that allow any tribe to adopt a part 15 have no budgetary effects and do
estates after June 20, 2006. The testator tribal probate code to govern descent not affect the rights or obligations of any
can still specify in the conveyance and distribution of trust and restricted recipients.
document distributions to the life tenant lands within its reservation or otherwise (b) The revisions to 43 CFR part 4
and remaindermen different from those subject to its jurisdiction. 25 U.S.C. (including those incorporated into the
established by AIPRA. There is no 2005(a). ILCA provides that the tribe new 43 CFR part 30) address the
change with respect to life estates must submit the tribal probate code to procedures for adjudicating a probate
created before June 20, 2006. the Secretary for review and that the case and the rights of individual Indians
Amendments to the discount rate Secretary may not approve tribal with respect to a given probate case. The
make the rate consistent with the probate codes that contain certain revisions do not address entitlements,
Internal Revenue Service’s valuations of provisions. grants, user fees, or loan programs.
life estate, which will generally provide The baseline is the absence of (c) In 25 CFR part 150, the rule
the remaindermen with more value than regulations governing tribal probate establishes user fees for services and
under the current 6% discount rate. codes. While the ILCA statute had
The cost of amendments products provided by LTRO. The
established requirements for a tribal Secretary had the right to charge fees
incorporating ‘‘without regard to waste’’
probate code and the basics of the under the prior regulation, but the
provisions could be a deferred value of
submission and approval process since revised part 150 describes the
the remaindermen’s estate. However,
1983, there have been no implementing Secretary’s intent to begin charging fees
amendments to the discount rate will
regulations. With AIPRA, a new uniform to persons who are not excepted. Under
generally provide remaindermen with
probate code will govern descent and 25 U.S.C. 14b, the Secretary may order
more value. These amendments may
distribution of trust and restricted that such funds be directed to the
affect the timing of the distribution of
property. This may prompt some tribes appropriation account for LTRO.
the value of the land between life
prepare one and may prompt tribes that Because the categories of persons who
tenants and remaindermen, but will not
already have a tribal probate code to are exempt from the fees is so large, the
affect the economy as a whole.
For these reasons, part 179 will not amend it in light of AIPRA. budgetary impact of the revised part 150
have a measurable effect on the AIPRA will govern the descent and will be minimal.
economy. distribution of trust and restricted (d) In 25 CFR part 152, the rule
property owned by a deceased Indian in implements AIPRA provisions to allow
43 CFR Parts 4 and 30 the absence of a will. In the alternative, for consolidation of highly fractionated
Most amendments to 43 CFR part 4 approved tribal probate codes will also lands, purchase of interests at fair
(including those incorporated in the govern the distribution of trust property, market value, and consolidation
new part 30) are amendments to the but will not directly affect the economy. agreements. These provisions broaden
existing 43 CFR 4 subpart D, relating to These regulations, which implement tribes’ rights to acquire interests through
the administration of probate estates. statutory provisions for Secretarial tribal tract purchases. Where interests
The amendments add provisions to approval of tribal probate codes, do not are acquired at the fair market value, the
establish procedures for renouncing an affect the economy because tribes were Secretary may contribute money from
interest, consolidating interests by already authorized to establish tribal the Acquisition Fund. ILCA established
agreement, requesting and conducting a probate codes and statutorily required to the Acquisition Fund, authorizing the
purchase at probate, determining fair submit such codes to the Secretary for Secretary to disburse appropriations to
market value, requesting approval. acquire fractional interests at fair market
disqualification of a judge, and For these reasons, the proposed new value and to collect all revenues from
standardizing the time periods for filing CFR part, 25 CFR part 18, will not affect the lease, permit, or sale of resources
requests for de novo review and the economy. from acquired interests or paid by
rehearing to 30, rather than 60, days. (2) This rule will not create a serious Indian landowners. By broadening
The existing 43 CFR part 4 does not inconsistency or otherwise interfere with tribes’ rights to acquire interests into
contain any of the methods for acquiring an action taken or planned by another trust, revisions to part 152 may increase
interests at probate that have recently agency. use of Acquisition Funds.
Additionally, subpart K of part 152 inconsistencies or budgetary impacts to or by the private sector of $100 million
allows for the partition of lands into any other agency or Federal program. or more in any one year.
smaller parcels where the interests are Because the proposed rule is limited
B. The Regulatory Flexibility Act to probated estates, land, and assets
unified. Under ILCA, grants are
available to successful bidders for The Regulatory Flexibility Act (5 within the United States and within
partitions; however, the amendments do U.S.C. 601 et seq.), requires Federal tribal communities, it will not have
not affect the grants. Because agencies to conduct a regulatory significant adverse effects on
conveyance of trust and restricted flexibility analysis when publishing a competition, employment, investment,
interests is generally voluntary, these notice of rulemaking for any proposed productivity, innovation, or the ability
amendments do not involve or final rule. The regulatory flexibility of the U.S.-based enterprises to compete
entitlements, grants, user fees, or loan analysis determines whether the rule with foreign-based enterprises.
programs, and therefore do not affect the will have a significant economic effect Accordingly, this proposed rule will not
budget of the Department or the rights on a substantial number of small entities have an economic impact on a
and obligations of recipients. (i.e., small businesses, small substantial number of small entities and
(e) In 25 CFR part 179, the respective organizations, and small governmental requires no regulatory flexibility
rights of a life estate tenant and jurisdictions). Indian tribes are not analysis.
remaindermen are changed, as of June considered to be small entities for the D. Unfunded Mandates Reform Act of
20, 2006. This change entitles the life purposes of the Act and, consequently, 1995
tenant to receipt of all income— no regulatory flexibility analysis has
including rents and profits, such as been done to address the effects on Title II of the Unfunded Mandates
contract bonuses and royalties—from Indian tribes. Reform Act of 1995 (UMRA), Public
the land. However, the testator can still Because the proposed rule is limited Law 104–4, requires Federal agencies to
specify in the conveyance document to probated estates, land, and assets assess the effects of their regulatory
distributions to the life tenant and within the United States and within actions on state, local, and tribal
remaindermen different from those tribal communities, it will not have governments and the private sector. If
established by AIPRA. The Department significant adverse effects on the Federal agency promulgates a
anticipates that this change in rights competition, employment, investment, proposed or final rule with ‘‘Federal’’
will not impact the budget. productivity, innovation, or the ability mandates that may result in
(f) The new regulation addressing of the U.S.-based enterprises to compete expenditures by state, local, and tribal
tribal probate codes will not materially with foreign-based enterprises. governments, in the aggregate, or by the
alter the Department’s budget because Accordingly, this proposed rule will not private sector, of $100 million or more
the regulation merely implements the have an economic impact on a in any one year, the Federal agency
existing statutory requirement for substantial number of small entities and must prepare a written statement,
Departmental review of tribal probate requires no regulatory flexibility including a cost-benefit analysis of the
codes; nor does the regulation affect the analysis. rule, under section 202 of the UMRA.
rights and obligations of recipients, as The term ‘‘Federal mandate’’ means any
C. Small Business Regulatory provision in statute or regulation or any
tribes’ probate codes were already
Enforcement Fairness Act of 1996 Federal court ruling that imposes ‘‘an
subject to Departmental review.
The Small Business Regulatory enforceable duty’’ upon state, local, or
(4) This rule does not raise novel legal
Enforcement Fairness Act of 1996 tribal governments, and includes any
or policy issues arising out of legal
(SBREFA), 5 U.S.C. 804(2), sets criteria condition of Federal assistance or a duty
mandates, the President’s priorities, or
for determining whether a rule is arising from participation in a voluntary
the principles set forth in the Executive
‘‘major.’’ A rule is ‘‘major’’ if OMB finds Federal program that imposes such a
Order.
that the rule will result in: (1) An duty.
Most of the regulatory changes The Department has determined that
directly implement statutory provisions annual effect on the economy of $100
the rule does not contain a Federal
and court orders that require certain million or more; (2) a major increase in
mandate that may result in expenditures
action to meet Indian trust management costs or prices for consumers,
of $100 million or more for state, local,
responsibilities. Specifically, the rule individual industries, Federal, state, or
and tribal governments in the aggregate,
implements requirements of AIPRA, the local government agencies, or
or by the private sector in any one year.
Trust Fund Management Reform Act of geographic regions; or (3) significant
The following discussion addresses
1994 and court orders. The legal and adverse effects on competition,
each CFR part individually to identify
policy issues related with this employment, investment, productivity,
Federal mandates.
rulemaking have been the subject of innovation, or the ability of U.S.-based
legislation, judicial action, and enterprises to compete with foreign- 25 CFR Part 15
consultations with tribes. They have based enterprises. Most amendments to part 15 address
been thoroughly discussed through the The proposed rule is not ‘‘major’’ the internal processes of the BIA (or
process of developing and within the meaning of SBREFA because tribe that has compacted or contracted
implementing the Fiduciary Trust it is exclusively confined to the Federal to fulfill probate functions) in compiling
Model, discussed in the ‘‘History of the Government, individual Indians, and probate files.
Rule’’ section of the preamble. tribes, but the proposed rule may • Part 15 contains a mandate for tribal
Thus, the impact of the rule is require some limited additional governments to provide information
confined to the Federal Government, expenditures by tribes, as discussed in when necessary to complete a probate
individual Indians, and tribes and does subsection (h) of the procedural file. This provision is aimed at requiring
not impose a compliance burden on the requirements (Paperwork Reduction tribes to provide information that is
economy generally. Accordingly, this Act) of this preamble. already readily available to them, such
rule is not a ‘‘significant regulatory However, the proposed rule will not as family history data.
action’’ from an economic standpoint, result in the expenditure by State, local, • Part 15 also contains a mandate for
nor does it otherwise create any or tribal governments, in the aggregate, the public, presumably someone closely
associated with the decedent, to provide and allow consolidation agreements and opportunity for meaningful and timely
either a death certificate or other purchases at probate. These input on the development of the
information regarding the death. opportunities are voluntary. The regulation, and continues to inform,
Subsection (h) of the procedural remainder of the amendments address educate, and advise tribes on the
requirements (Paperwork Reduction OHA adjudication of probate estates and contents of the regulation.
Act) of this preamble states the expected appeals. These amendments do not
E. Governmental Actions and
increase in cost burden on tribal impose any Federal mandates on
Interference With Constitutionally
governments of these mandates, which individual Indians, tribes, or others
Protected Property Rights (Executive
is minimal. The opportunity for tribes to outside the Department of the Interior.
Order 12630)
adopt their own tribal probate codes is New 25 CFR Part 18 (Tribal Probate
voluntary and does not qualify as a This proposed rule does not have
Codes) significant ‘‘takings’’ implications. A
Federal mandate.
The new CFR part addressing tribal taking occurs when private property is
25 CFR Part 150 probate codes implements statutory taken for public use without just
The revised part 150 clarifies LTRO authority for preparing a tribal probate compensation or without due process of
processes, services, and products. This code and statutory requirements for law. The proposed rule includes a few
part requires persons requesting LTRO Secretarial approval of tribal probate instances where property may be
services and products to provide certain codes. Preparation of a tribal probate considered ‘‘taken;’’ however, just
information to allow the LTRO to code is voluntary; therefore, this compensation is granted in each case.
identify the property for which the regulation does not impose any Federal For example, 25 CFR part 152 allows a
service or product is being requested. mandates on tribes. tribe to acquire land into trust status
There is no mandate to obtain LTRO Section 205 of the UMRA requires the with the consent of only 50% of
products or services, so the requirement agency to identify and consider a landowners, but must compensate all
to provide information in support of a reasonable number of regulatory owners for their interests. Additionally,
request for products and services is not alternatives to the rule and adopt the individual owners may preempt the
a Federal mandate. least costly, most cost-effective, or least tribe’s right to purchase under certain
burdensome alternative that achieves circumstances. Additionally, for a
25 CFR Part 152 the objectives of the rule. The consolidation by sale, the Secretary will
Amendments to part 152 provide Department has determined that seek only the consent of the tribe and of
tribes and individual Indians with alternatives to this regulation are those owners who maintained a bona
opportunities to convey and consolidate limited by practicality and feasibility, fide residence on the parcel or operated
their interests in trust or restricted land. among other concerns, given that this a bona fide farm, ranch or other
The opportunities to convey land regulation is the result of negotiated business on the parcel for the preceding
interests are essentially a voluntary working group recommendations three years. Additional consent is
Federal program. Therefore, the working within the confines of statutory required where any individual owner’s
requirement does not equate to a and judicial mandates. For this reason, undivided interest is worth more than
Federal mandate. the primary alternative the Department $1,500 (i.e., consent of owners of at least
Part 152 requires applicants to examined was the baseline (i.e., the 50% of the undivided ownership
include certain information in current CFR part or the absence of interest in the parcel). In each of these
applications for acquisitions and regulatory provisions, as appropriate). cases, even if an owner does not
conveyances that are available from the With respect to each proposed CFR part, consent, the owner is provided with just
LTRO. Items required under part 152 the Department determined that the compensation. The only other
that may be available from the LTRO proposed language meets the objectives provisions of the proposed rule that may
include: of the proposed rule. raise a question as to takings are those
• Maps. Section 203 of the UMRA requires the related to procedures for dealing with
• Legal description of the land. agency to develop a small government heirs or landowners whose whereabouts
• Title status of other interests. agency plan before establishing any are unknown. However, in each of these
• Location of roads and rights of way. regulatory requirements that may cases, the proposed rule establishes the
• Location of the land with respect to significantly or uniquely affect small procedure to ensure that each
other lands in which the applicant has governments, including tribal individual whose whereabouts are
a trust interest. governments. The small government unknown is afforded due process of law
However, these items are available agency plan must include procedures before being deprived of any specific
from sources other than LTRO, so these for notifying potentially affected small real property interest.
requirements do not require applicants governments, providing officials of
affected small governments with the F. Federalism (Executive Order 13132)
to obtain products from the LTRO, and
therefore do not translate into Federal opportunity for meaningful and timely Executive Order 13132, entitled
mandates. input in the development of regulatory ‘‘Federalism’’ (64 FR 43255, August 10,
proposals with significant Federal 1999), establishes certain requirements
25 CFR Part 179 intergovernmental mandates, and for Federal agencies issuing regulations,
Amendments to part 179 do not informing, educating, and advising among other agency documents, that
impose any duties on persons outside small governments on compliance with have ‘‘Federal implications.’’ A
the Department of the Interior. the regulatory requirements. The regulation has ‘‘Federal implications’’
Department has been operating under when it has ‘‘substantial direct effects
43 CFR Parts 4 and 30 tribal consultation procedures that on the states, on the relationship
Amendments to 43 CFR part 4 equate to a small government agency between the national government and
(including those incorporated into the plan. The Department has developed the states, or on the distribution of
new 43 CFR part 30), related to these regulations in accordance with power and responsibilities among the
adjudication of probate estates, clarify consultation procedures for notifying various levels of government.’’ Section 6
the process for renouncing an interest tribes, providing tribes with the of the Executive Order prohibits any
agency from issuing a regulation that General. Section 3(c) of the Executive Requested Expiration Date: Three
has Federal implications, imposes Order 12988 requires agencies to review years from the approval date.
substantial direct compliance costs on regulations in light of the applicable Summary: This part contains the
state and local governments, and is not standards in sections 3(a) and 3(b) to procedures that the Secretary of the
required by statute. Such a regulation determine whether they are met or Interior follows to initiate the probate of
may be issued only if the Federal whether it is unreasonable to meet one the trust estate of a deceased person for
Government provides the funds or more of them. whom the Secretary holds an interest as
necessary to pay the direct compliance The Department has determined that trust or restricted property. The
costs incurred by state and local this proposed rule will not unduly Secretary must perform the information
governments, or the agency consults burden the judicial system. Significant collection requests in this part to obtain
with state and local officials early in the portions of the proposed rule will the information necessary to compile an
process of developing the proposed ensure that the judicial system is not accurate and complete probate file. This
regulation. Further, a Federal agency overly burdened through the file will be forwarded to the Office of
may issue a regulation that has establishment of an administrative Hearings and Appeals (OHA) for
federalism implications and preempts appeal process. For example, disposition. Responses to these
state law only if the agency consults amendments to 43 CFR part 4, which information collection requests are
with state and local officials early in the describes administrative processes for required to obtain benefits (e.g., make a
process of developing the proposed challenging the outcome of a probate claim against a probated estate) in
regulation. proceeding, will streamline the probate accordance with the Secretary’s sole
This proposed rule does not have adjudication process. Additionally, the statutory authority to probate estates
federalism implications because it Department has determined that the (see 25 U.S.C. 372).
pertains solely to Federal-tribal relations proposed rule meets the applicable Bureau Form Number: None.
and will not interfere with the roles, standards provided in sections 3(a) and Frequency of Collection: One per
rights, and responsibilities of the States. 3(b) of Executive Order 12988. The probate.
The proposed rule primarily provides Department has incorporated ‘‘plain Description of Respondents: Indians,
means for improving the trust language’’ approaches, as described in businesses, and tribal authorities.
relationship between the Department OMB’s Writing User-Friendly Topics Total Annual Responses: 76,655.
and individual Indians by allowing the referred to in the Federal Register Total Annual Burden Hours:
Department to better serve Document Drafting Handbook. 1,037,433.
beneficiaries’’ interests. Additionally, Department attorneys provided input The following is an explanation of the
the Federal government and the tribes throughout the development and information collection requirements for
have a government-to-government drafting of these regulations to provide 25 CFR part 15.
relationship that is independent of and clear legal standards, specify Section 15.4 What are the
does not affect the Federal government’s preemptive effects, specify the effect on requirements for my will?
relationship to the states or the balance existing Federal laws and regulations,
of power and responsibilities among and otherwise minimize the likelihood The proposed rule adds a requirement
various levels of government. Therefore, that litigation will result from an for a testator and witnesses self-proving
in accordance with Executive Order ambiguity in the regulations. a will, codicil, or revocation to file
13132, it is determined that this affidavits. The Department has
proposed rule will not have sufficient H. Paperwork Reduction Act estimated that approximately 1,000
federalism implications to warrant the The Paperwork Reduction Act (PRA), testators will choose to ‘‘self-prove’’
preparation of a federalism assessment. 44 U.S.C. 3501 et seq., prohibits a their wills each year and that it will take
Federal agency from conducting or approximately 0.5 hours to make the
G. Civil Justice Reform (Executive Order affidavit before an official authorized to
sponsoring a collection of information
12988) administer oaths and to attach the
that requires OMB approval, unless
Executive Order 12988 (61 FR 4729, such approval has been obtained and affidavit to the will = 500 burden hours.
February 7, 1996), section 3(a), requires the collection request displays a This represents an increase of 500
Federal agencies to adhere to the currently valid OMB control number. burden hours due to program change
following requirements: (1) Eliminate Nor is any person required to respond with no annualized startup, or
drafting errors and ambiguity; (2) write to an information collection request that operations and maintenance costs.
regulations to minimize litigation; (3) has not complied with the PRA. In Likewise, given that approximately
provide a clear legal standard for accordance with 44 U.S.C. 3507(d), BIA 1,000 testators will choose to ‘‘self-
effective conduct rather than a general has submitted the information prove’’ their wills each year,
standard and promote simplification collection and recordkeeping approximately 2,000 witnesses will be
and burden reduction. Section 3(b) requirements of this proposed rule to required to file supporting affidavits at
specifically requires that executive OMB for review and approval. Four CFR 0.5 hours each = 1,000 burden hours.
agencies make every reasonable effort to parts being proposed today contain This represents an increase of 1,000
ensure that the regulations: (1) Clearly information collection requests: 25 CFR burden hours due to program change
specify any preemptive effect; (2) clearly parts 15, 18, 150 and 152. The following with no annualized startup, or
specify any effect on existing Federal tables, by part, describe the information operations and maintenance costs.
law or regulation; (3) provide a clear collection requirements in each section
legal standard for affecting conduct Section 15.104 Does BIA need a death
of the proposed rule and any changes certificate to prepare a probate file?
while promoting simplification and from the current rule.
burden reduction; (4) specify the The proposed rule adds a requirement
retroactive effect, if any; (5) adequately 25 CFR Part 15 for persons unable to provide a death
define key terms; and (6) address other Title: Probate of Indian Estates, Except certificate to provide as much as they
important issues clearly affecting clarity for Members of the Five Civilized know about the deceased, including:
and general draftsmanship under any Tribes. The state, city, reservation, location,
guidelines issued by the Attorney OMB Control Number: 1076–NEW. date, and cause of death, the last known
address of the deceased, and names and decedent and potential heirs and The proposed rule also adds a
addresses of others who may have beneficiaries. requirement for the person filing a claim
information about the deceased. If no The Department estimates that against the estate to file an affidavit. The
death certificate exists, they must providing these documents will add Department has determined that this
provide this information in an affidavit. approximately 1.25 hours to each does not qualify as ‘‘information’’ under
This information will ensure that BIA response. Assuming 21,235 respondents 5 CFR 1320.3(h)(1) because it entails no
has the information it needs regarding annually × 45.5 hours to complete this burden other than that necessary to
the identity of the deceased to collect section = 966,192.5 burden hours. This identify the claimant, the date, the
documents for the probate file. The is an increase of approximately claimant’s address, and the nature of the
requirement already existed to provide 26,543.75 hours due to a program instrument as a claim against the estate.
a death certificate or, when unable to change, with no annualized startup, or
provide a death certificate because none operations and maintenance costs. Section 15.403 What happens after the
existed, newspaper articles, obituary, or probate decision is made?
Section 15.201 Can I get funds from
death notices and a church or court the decedent’s IIM account for funeral This section provides that a request
record. services? for de novo review may be filed within
The Department estimates that
There has been no change to the 30 days of a probate decision. The
preparing the affidavit in lieu of
information collection requirements in information collection requirements that
providing a death certificate will impose
this section. The Department estimates had been included in this section have
an additional 1 hour burden per
that there will be one request for funeral been moved to 43 CFR 4, but are exempt
response to comply with this section.
expenses per each of the estimated under 5 CFR 1320.4(a)(2) because they
The existing estimated burden for
5,850 probates per year, at an estimated relate to the conduct of administrative
locating and providing the death
2 hours per response = 11,700 burden actions against specific individuals.
certificate is 4 hours per response.
hours, with no annualized startup, or Additionally, all that is required is the
Assuming a respondent provides an
operations and maintenance costs. filing of a notice of appeal. This
affidavit in lieu of a death certificate
only after spending the 4 hours Section 15.202 If the decedent owed represents a decrease of 53,088 hours
searching unsuccessfully for the death me money, how do I file a claim against due to a program change.
certificate, 5 total burden hours per the estate? Section 15.505 What information must
response are required to comply with The proposed rule adds a requirement tribes provide BIA to complete the
this section. Assuming approximately that creditors provide information on probate file?
5,850 probates per year, the total burden their claims. Specifically, the rule
will be 5,850 responses × 5 hours per requires creditors to file with the This new section requires tribes to
response = 29,250 burden hours. This Secretary an affidavit and an itemized provide any information the Secretary
represents an increase of 5,850 hours statement of the debt, including copies requires to complete the probate file,
due to a programmatic change, with no of any documents (such as signed notes, such as enrollment or family data. The
annualized startup, or operations and mortgages, account records, billing information required by the Secretary
maintenance costs. records, and journal entries) necessary will include documents that the tribe
Section 15.105 What other documents to prove the indebtedness. should have readily available. We
does BIA need to prepare a probate file? The Department estimates that, on assumed that, of the 5,850 probate cases,
average, approximately 6 creditor claims at least one decedent would come from
This section lists the items that BIA per probate estate will be filed and that each of the 562 Federally recognized
needs to prepare a probate file. The it will take creditors approximately 0.5 tribes. On average, a tribe will have to
decedent’s family and other hours to provide this information. The provide information for approximately
knowledgeable members of the public most recent Paperwork Reduction Act 10 of the 5,850 probate cases per year.
are the most likely respondents for this submission purported to assume that 6 We estimate that each tribe will require
information. The proposed rule adds claims per probate estate would be filed, 2 hours to assist in completing the
several items of information that must but at 5,850 probates per year, the probate file × 10 responses annually ×
be included in the probate file. These previous assumption of 127,410 562 Federal recognized tribes = 11,240
additional items are: (1) Adoption and respondents appears to be erroneous. hours to ensure completion of probate
guardianship papers concerning Assuming 35,100 responses (6 claims files. This is a new requirement, which
decedent’s potential heirs or per probate estate × 5,850 probate incorporates 11,240 hours as a program
beneficiaries; (2) orders requiring estates), the Department estimates the change, with no annualized startup, or
payment of spousal support; (3) burden hours = 35,100 responses × 0.5 operations and maintenance costs.
identification of person or entity to = 17,550 burden hours. This is a
whom an interest is renounced; (4) court decrease of approximately 46,155 hours Note: The ‘‘Old CFR Section’’ numbers in
judgments regarding creditor claims; due to a program change, with no the table below are those as of the last
and (5) place of enrollment and tribal annualized startup, or operations and Paperwork Reduction Act submission for 25
enrollment or census number of the maintenance costs. CFR part 15 in December 2003.
Total hours Currently

Old CFR New CFR Description of info collec- No. of resps Hours per requested approved Explanation of difference
section section tion requirement per yr resp (Annual)* hours
15.4 File affidavit to self-prove 1,000 0.5 500 0 New section requires tes-
will, codicil, or revoca- tator affidavit to self-
tion. prove will.
15.4 File supporting affidavit to 2,000 0.5 1,000 0 New section requires wit-
self-prove will, codicil, ness affidavits to self-
or revocation. prove will.

Old CFR New CFR Description of info collec- No. of resps Hours per requested approved Explanation of difference
section section tion requirement per yr resp (Annual)* hours
15.101 ........... 15.104 Reporting req.-death cer- 5,850 5 29,250 23,400 New section requires ad-
tificate. ditional information
where a death certifi-
cate is not provided. 3
15.106 ........... 15.201 Reporting funeral ex- 5,850 2 11,700 11,700 No change.
penses.
15.104 ........... 15.105 Provide probate docu- 21,235 45.5 966,193 939,649 Amendments delete re-
ments. quirement for birth cer-
tificate, but add other
requirements.
15.109 ........... Provide disclaimer info 0 0 0 7,887 Section deleted.
(1⁄4).
15.303 ........... 15.202 File claim against estate N/A N/A N/A ....................
(affidavit).
15.203 ........... N/A Provide response to 0 0 0 2,972 This requirement has
transmittal. been deleted.
15.303 ........... 15.202 Provide info on creditor 35,100 0.5 17,550 63,705 Decrease to reflect 6
claim (6 per probate). claims per probate.
15.402 ........... 15.403 Provide info for filing ap- 0 0 0 53,088 Now only have to file a
peal. notice of appeal; info
collection requirements
moved to 43 part CFR
4.
15.505 Provide tribal information 5,620 2 11,240 0 New requirement for
for probate file.2. tribes to provide enroll-
ment information, upon
request.
Total ...... .................... .......................................... 76,655 .................... 1,037,433 1,094,514
25 CFR Part 18 Bureau Form Number: None. probate code to submit the code or
Title: Tribal Probate Codes. Frequency of Collection: On occasion. amendment to the Secretary or
OMB Control Number: 1076–NEW. Description of Respondents: Tribal approval. The Department has estimated
Requested Expiration Date: Three authorities. that, on average, approximately 100
years from the approval date. Total Annual Responses: 100. tribes will submit new codes or amend
Summary: This part contains the Total Annual Burden Hours: 50. their existing codes each year, and that
procedures that the Secretary of the The following is an explanation of the it will take approximately 0.5 hours to
Interior follows to review and approve information collection requirements for submit the code or amendment to the
tribal probate codes and amendments to 25 CFR part 18. Secretary = 50 burden hours. This
tribal probate codes. This part also represents an increase of 50 burden
explains the procedure the tribe must Section 18.4 How does a tribe request
approval for a probate code? hours due to program change with no
follow to begin the approval process for annualized startup, or operations and
a tribal probate code or amendment to The proposed rule adds a requirement maintenance costs.
the code, as well as dates on when the for a tribe enacting a new tribal probate
tribal probate code becomes effective. code or amending an existing tribal

New CFR Description of info collection No. of resps Hours per requested approved Explanation of difference
section requirement per yr resp (annual)* hours
18.4 .............. Submit tribal probate code or 100 0.5 50 0 New section requires submission
amendment. of tribal probate code or
amendment for approval.
Total ...... ...................................................... 100 .................... 50 0
25 CFR Part 150 documents and providing services and of Title to members of the public, except
Title: Indian Land Record of Title. products to Indians, tribes, and in those instances where access would
OMB Control Number: 1076–NEW. individuals. The proposed part 150 violate law or policy restricting access
Summary: This part establishes the replaces the existing part in its entirety to such records.
Land Title and Records Office (LTRO) as to provide clarification of LTRO’s Bureau Form Number: N/A.
the official record of land records and procedures and increase the ability of
title instruments affecting Indian land. the LTRO to provide services and Frequency of Collection: One per
The LTRO protects ownership interests products to Indians, tribes, and the Indian, tribal authority, business or
in trust and restricted Indian land by public. The LTRO provides access to other non-profit, Federal government, or
recording and maintaining title information in the Indian Land Record other member of the public.
Description of Respondents: Indians, require that this information be identifying information for instruments
tribal authorities, businesses or other provided in any specific form. The that have already been recorded.
non-profits, Federal government, and anticipated respondents include Burden hours therefore equal 6,338
other members of the public. individuals, tribes, governmental requests (3,169 persons or entities
Total Annual Responses: 12,686. agencies, and oil, gas, and title abstract requesting products or services 2 times
Total Annual Burden Hours: 12,696. companies. a year) × 1 hour per request = 6,338
The following is an explanation of the Each of the LTRO’s products and burden hours. The total burden costs
information collection requirements for services is provided with respect to a based on a $18.52/hour cost estimate
25 CFR part 150 and any changes from specific tract or tracts or property. In multiplied by the total hourly burden
the current rule. nearly all cases, the Bureau of Indian per year = $117,380. This represents an
Total Non-Hour Burden: $907,795. Affairs or the tribal agency requests a adjustment to account for a previously
service or product from the LTRO on unidentified information collection
Section 150.208 How do I correct an behalf of the individual or entity. These
error or omission in a title instrument or request burden, with no annualized
estimates include agency requests on startup costs. Operations and
LTRO product or service? behalf of the member of the public. maintenance costs in the form of fees
Section 150.208 requires persons who The Department estimates that 6,338
are estimated to be $453,897.50 (one
discover an error or omission in an persons or entities request services and
half of the total fees $907,795).
LTRO record to provide the LTRO with: products from LTRO approximately 2
(1) a written description of the error or times each year, for a total of 12,686 Section 150.302(c) How do I order
omission; and (2) any supporting requests. Persons who own an interest services and products from the LTRO?
documentation. in the land for which they are
The Department estimates that a requesting a service or product will The proposed revisions to part 150
minimal number of persons and entities usually have a legal description or provided in subsection (c) of this
requesting services and products from identification number readily available. section include a requirement for
LTRO each year will identify an error or For example, most new heirs will have persons requesting LTRO products or
omission in an LTRO record. Most a legal description of the property in services to provide alternate information
errors and omissions are identified which they are interested from the to identify the property if they are
through an in-house quality assurance inventory of the probated estate. If the unable to provide the information listed
process wherein the agency filing the person received the property by deed, in section 150.302(b). Section 150.302(c)
document with the LTRO reviews the then the agency would have provided allows the applicant to submit any other
document to identify and address errors the person with a deed. However, for information that the LTRO may use to
and omissions. The Department also persons who are not co-owners in the identify an owner of the tract of land,
estimates that it will take approximately property, this information may be more including but not limited to: name and
2 hours to write a statement describing difficult to obtain; therefore, the tribal affiliation of an owner, the
the error or omission and research, Department estimates that the person or recording number of the instrument, or
copy, and provide either via mail or in entity will be unable to provide this an allotment number.
person any documentation supporting information for approximately half of Because this information is alternate
the claim that an error or omission the total requests for LTRO products or information, the Department estimates
exists. services each year. (See section that of the estimated 6,338 persons and
Burden hours = 10 persons and 150.302(c), which provides applicants entities requesting services and
entities identifying errors or omissions with the option of providing alternate products from the LTRO 2 times each
per year × 2 hours = 20 burden hours. information). For this reason, the year, 3,169 will be unable to provide the
The total burden costs based on a Department estimates that 3,169 persons information required by section
$18.52/hour cost estimate multiplied by or entities (one half of the total 6,338 152.302(b), and therefore submit the
the total hourly burden per year = respondents) will request services and information in section 150.302(c). The
$370.40. This represents an adjustment products from LTRO approximately 2 Department also estimates that it will
to account for a previously unidentified times per year and provide the take approximately 1 hour to obtain and
information collection request burden, information requested in this section, provide information necessary to
with no annualized startup, or rather than provide the alternate identify the tract of property for which
operations and maintenance costs. information permitted by section they are requesting the product or
150.302(b), for a total of 6,338 service. Burden hours = 3,169 requests
Section 150.302(b) How do I order responses. The Department is using 1 (3,169 persons and entities × 2 times per
services and products from the LTRO? hour as an average baseline estimate for year) × 1 hour = 6,338 burden hours.
The proposed revisions to part 150 the time it will take to obtain The total burden costs based on a
provided in subsection (b) of this information necessary to identify the $18.52/hour cost estimate multiplied by
section include a requirement for tract of property for which they are the total hourly burden per year =
persons requesting a product or service requesting the product or service and $117,380. This represents an adjustment
from the LTRO to identify the property provide that information to the LTRO to account for a previously unidentified
in which they are interested by either by mail or in person. This average information collection request burden,
providing one of the following: (1) A incorporates the longer time (generally with no annualized startup costs.
legal description of the property; (2) an 4–8 hours) to survey to obtain an initial Operations and maintenance costs in
identification number for the tract; or (3) legal description, as well as the shorter the form of fees are estimated to be
the identification number of the owner time (0.5 hours) it takes to obtain the $453,897.50 (one half of the total fees
of the tract. The provision does not identification number or other $907,795).
Responses
No. of Hourly Total hourly
Description of info collection per
New CFR section respondents burden per burden Explanation of difference
requirement respondent
(annual) response (annual)*
(annual)
150.208 ................. Provide written description 10 1 2 20 Adjustment to account for pre-

and supporting documenta- viously unidentified burden.
tion of error or omission.
150.302(b) ............. Provide information to identify 3,169 2 1 6,338 Adjustment to account for pre-
property when requesting viously unidentified burden.
product or service.
150.302(c) ............. Provide other information if in- 3,169 2 1 6,338 Adjustment to account for pre-
formation in 150.302(b) is viously unidentified burden.
not available.
Responses ..... ................................................. 12,686 .................... .................... 12,696
25 CFR Part 152 same reservation, the tribe that exercises plan to submit a tribal resolution to the
Title: Conveyances of Trust or jurisdiction over the parcel, a person Secretary. Tribes prepare tribal
Restricted Land; Removal of Trust or eligible for membership in the tribe that resolutions as a usual and customary
Restricted Status. exercises jurisdiction over the parcel, or business practice. However, the
OMB Control Number: 1076–NEW. a person or entity that is leasing, using, following estimates capture how long it
Summary: This part contains the consolidating—or applying to lease, use, would take the tribe to copy and
procedures that the Secretary of the or consolidate trust or consolidated provide the resolution to the
Interior follows to review and approve lands on that reservation). Department. The Department estimates
of conveyances of Indian trust and The Department estimates that 200 that, each year, 50 tribes with
restricted land and removal of trust and persons and tribes each year will consolidation plans will request an
restricted status from Indian land. The request the above LTRO information average of 2 sales or exchanges, and that
Secretary must perform the information and that it will take approximately 0.5 it will take 0.60 hours to provide a tribal
collection requests in this part to obtain hours to compile and provide the resolution in support of each sale or
the information necessary to complete information and draft and provide the exchange.
the requested transaction. An written request. Burden hours = 50 tribes × 2 sales and
‘‘Application for Consolidation by Sale’’ Burden hours = 200 persons and exchanges × 0.60 hours = 60 total
form must be submitted to apply for tribes requesting LTRO information × burden hours, at $15/hour for a cost to
consolidations by sale. Responses to 0.5 hours = 100 total burden hours, at the public of $900. This represents a
these information collection requests are $15/hour for a cost to the public of program change, with no annualized
required to obtain benefits (e.g., $1,500. This represents a program startup, or operations and maintenance
complete the requested transaction). change, with no annualized startup, or costs.
Bureau Form Number: There is a operations and maintenance costs.
Section 152.107 In the absence of an
form, but no number. Section 152.102 What must a land approved land consolidation plan, how
Frequency of Collection: Occasional. consolidation plan include? does a tribe get approval for an
Description of Respondents: Indians exchange of tribal land?
and tribal authorities. A tribal consolidation plan is a plan
Total Annual Responses: 1,250. for eliminating fractionation and/or This section requires a tribe
Total Annual Burden Hours: 2,103. consolidating tribal land holdings, that requesting a sale or exchange in the
The following is an explanation of the specifies what land or interests are to be absence of an approved tribal land
information collection requirements for conveyed and what land or interests are consolidation plan to submit a tribal
25 CFR part 152 and any changes from to be purchased with the proceeds of the resolution to the Secretary. The
the current rule. sale. Under section 152.105, in order for Department estimates that, each year,
the Secretary to take action on the plan, 100 tribes without consolidation plans
Section 152.3 Will the Secretary the tribe must submit the plan to the will request an average of 1 sale or
provide ownership information? Secretary for approval. The Department exchange, and that it will take 0.60
This section provides that certain estimates that 50 tribes will prepare a hours to provide a tribal resolution in
persons, listed in section 152.4, may consolidation plan each year, and that it support of each sale or exchange.
request the Land Title and Records will take 5 hours for each tribe to Burden hours = 100 tribes × 1 sale or
Office (LTRO) to provide the names and prepare the plan. exchange × 0.60 hours = 60 total burden
mailing addresses of owners of a parcel Burden hours = 50 tribes × 5 hours = hours, at $15/hour for a cost to the
of trust or restricted lands, the location 250 total burden hours, at $15/hour for public of $900. This represents a
of the parcel, and the percentage of a cost to the public of $3,750. This program change, with no annualized
undivided interest owned by each represents a program change, with no startup, or operations and maintenance
individual by providing a written annualized startup, or operations and costs.
request containing: maintenance costs.
• A legal description or other Section 152.206 How does an owner
information allowing the parcel to be Section 152.105 How does a tribe initiate a negotiated sale, gift, or
identified; and receive approval for a sale or exchange exchange?
• A description of how the applicant under a land consolidation plan? This section requires an owner to
meets the requirements of 152.4 (i.e., This section requires a tribe submit to the Secretary a written request
that the applicant is an owner of a requesting a sale or exchange pursuant for negotiated sale, gift, or exchange
parcel of trust or restricted land on the to an approved tribal land consolidation containing various items of information,
including: a description of the land, the × 1 hour = 200 total burden hours, at Section 152.412 How does a tribe
grantee and his or her tribal affiliation, $15/hour for a cost to the public of reserve its right to match the highest
any limitations known by the grantor of $3,000. This represents a program bid?
the right to convey, any intention to change, with no annualized startup, or This section allows tribes to match
reserve rights to the land, whether the operations and maintenance costs. the highest bid from a non-member of
owner waives his right to fair market the tribe by submitting a copy of the
value, and the terms of the sale, gift, or Section 152.303 How does a tribe
apply for a parcel purchase? tribal law or resolution to the Secretary.
exchange. The Department estimates
The Department estimates that 50 tribes
that 200 tribal and individual Indian
This section requires tribes who want will request the opportunity to match
owners will request a negotiated sale,
to initiate a tribal parcel purchase to the highest bid to buy property, at an
gift, or exchange each year, at an average
submit an application including various average of one request per tribe, each
of one request per person, and that it
items of information, including: an year, and that it will take 0.60 hours to
will take 4.2 hours to make a request in
appraisal which establishes the fair prepare the resolution in support of the
compliance with this section.
Burden hours = 200 tribes/individual market value of the parcel as of the date request.
Indian owners × average of 1 request per the application is filed; a certified title Burden hours = 50 tribes × 1 request
person × 4.2 hours = 840 total burden report and/or consent forms from the per tribe × 0.6 hours = 30 total burden
hours, at $15/hour for a cost to the owners, reflecting that the applicant has hours, at $15/hour for a cost to the
public of $12,600. This represents a public of $450. This represents a
either acquired at least 50% of the trust
program change, with no annualized program change, with no annualized
or restricted interests in the parcel or
startup, or operations and maintenance startup, or operations and maintenance
obtained the consent of the owners of at
costs. costs.
least 50% of such interests; and a
Section 152.217 When can a co-owner deposit of the purchase funds needed to Section 152.503 How can an owner
acquire an interest previously acquired compensate the owners of all of the initiate a partition action?
on behalf of a tribe? outstanding trust or restricted interests This section allows owners of
Subsection (b) of this section provides in the parcel, based on the applicant’s fractional interests in a parcel to apply
that a co-owner may request notification appraisal. The Department estimates to the Secretary for partition of the
when a tribe initially acquires interest that 50 tribes each year will apply for a parcel in order to consolidate interests
in a given tract under the Indian Land tribal parcel purchase and that it will in a smaller parcel. The application for
Consolidation Program. The response to take, on average, approximately 2 hours partition must contain the legal
this request will facilitate the owner’s for each to provide the necessary descriptions, appraisals, and
ability to exercise the purchase option. applicant and tract information. The ownerships of the tract to be partitioned
The Department estimates that 50 remaining components of the with smaller resulting tracts. The
owners will request notification each application are provided by either the Department estimates that 50 owners
year and that it will take 0.25 hours to Bureau of Indian Affairs or the Office of each year will submit an application for
provide the request and contact the Special Trustee for American partition, at an average of one
information to allow the Department to Indians. application per owner, and that, on
notify the co-owner when appropriate. average, it takes approximately 2 hours
Burden hours = 50 tribes × 1 to provide the necessary applicant and
Burden hours = 50 co-owners who application per tribe × 2 hours = 100
will request notification x 1 request per tract information. The Bureau of Indian
total burden hours, at $15/hour for a Affairs provides the remaining
co-owner x 0.25 hours = 12.5 total
cost to the public of $1,500. This information necessary for the
burden hours, at $15/hour for a cost to
represents a program change, with no transaction, including the legal
the public of $188 (rounded up from
annualized startup, or operations and description and the owners of the tract,
$187.5). This represents a program
change, with no annualized startup, or maintenance costs. while the Office of Appraisal Services
operations and maintenance costs. Section 152.403 How do I apply to provides the appraisal.
consolidate a parcel by sale? Burden hours = 50 tribes × 1
Section 152.219 How does a application per tribe × 2 hours = 100
transaction affect collection of This section allows eligible bidders to total burden hours, at $15/hour for a
construction costs for irrigation apply to the Secretary for approval on cost to the public of $1,500. This
projects? represents a program change, with no
the Bureau form, ‘‘Application for
Subsection (b) of this section provides Consolidation by Sale,’’ to consolidate annualized startup, or operations and
that if land is conveyed in fee, the interests in a highly fractionated parcel maintenance costs.
person acquiring the land in fee must by selling interests to one owner. The Section 152.602 How do owners
enter into an agreement to pay the pro Department estimates that 100 eligible submit an application for approval of a
rata share of the construction project bidders will apply for a consolidation mortgage or deed of trust?
chargeable to the land, all construction by sale each year, at an average of one
costs that accrue in the future, and all application per eligible bidder, and that This section allows the owner of the
future charges assessable to the land proposed mortgagee or beneficiary to
it will take 0.5 hours to prepare the
based on the annual cost of operations submit an application for approval of a
application for consolidation by sale.
and maintenance of the irrigation mortgage or deed of trust containing the
system. The Department estimates that Burden hours = 100 eligible bidders × executed mortgage or deed of trust, the
200 persons will acquire trust or 1 application per eligible bidder × 0.5 promissory note, other documents
restricted land in fee and that it will hours = 50 total burden hours, at $15/ regarding remedy in the case of default,
take 1 hour to enter into the required hour for a cost to the public of $750. an appraisal, the loan application, a
agreement. This represents a program change, with credit report, title reports, and any
Burden hours = 200 persons acquiring no annualized startup, or operations and necessary environmental or historic
land in fee status × 1 request per person maintenance costs. preservation documentation. The
Department estimates that 100 owners and that it will take approximately 3 cost to the public of $4,500. This
will request a mortgage or deed of trust, hours to complete the application. represents a program change, with no
at an average of one request per owner, Burden hours = 100 owners × 1 annualized startup, or operations and
application per owner × 3 hours = 300 maintenance costs.
total burden hours, at $15/hour for a

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

1,250.
The Department invites comments on comments available for public J. Government-to-Government

the information collection requirements inspection during regular business Relationships With Tribes (Executive
of this proposed rule. You may submit hours. If you wish to have your name Order 13175)
comments to the Desk Officer for the and address withheld from public In accordance with the President’s
Department of Interior by e-mail at inspection, you must state this
OIRA_DOCKET@omb.eop.gov or by memorandum of April 29, 1994,
prominently at the beginning of any ‘‘Government-to-Government Relations
facsimile at (202) 365–6566. Please also comments you make. The Department
send a copy of your comments to BIA with Native American Tribal
will honor your request to the extent Governments,’’ Executive Order 13175
at the location specified under the allowable by law. We may withhold the
heading ADDRESSES. (59 FR 22951, November 6, 2000) and
You can receive a copy of BIA’s information for other reasons. 512 DM2, we have evaluated the
submission to OMB, including a copy of I. National Environmental Policy Act potential effects on Federally recognized
the form related to 25 CFR section Indian tribes and Indian trust assets and
(NEPA)
152.403, by contacting the person listed have identified potential effects. The
in the FOR FURTHER INFORMATION The National Environmental Policy Department has engaged tribal
CONTACT section, or by requesting the Act of 1969 (NEPA) requires Federal government representatives in
information from the BIA Information agencies to perform an environmental developing the Fiduciary Trust Model,
Collection Clearance Officer, 625 assessment or environmental impact which served as the basis for this
Herndon Parkway, Herndon, VA 20970. statement for all ‘‘major Federal rulemaking, has provided tribal
Comments should address: (1) actions.’’ This rule does not constitute a government representatives with
Whether the collection of information is major Federal action significantly advance copies of this proposed rule,
necessary for the proper performance of affecting the quality of the human and provides additional notice to tribal
the Program, including the practical government through this Federal
environment. An environmental
utility of the information to the BIA; (2) Register notice. Subsequently, the
assessment is not required because any
the accuracy of the BIA’s burden Department will follow Departmental
environmental effects of this rule are too protocols for consulting with tribal
estimates; (3) ways to enhance the broad, speculative, or conjectural to
quality, utility, and clarity of the governments on this proposed rule.
lend themselves to meaningful analysis. Specifically, the Department is planning
information collected; and (4) ways to
Further, the Federal actions under the an additional three consultation
minimize the burden of collection of
information on the respondents, proposed rule (e.g., approval or meetings to exchange information with
including the use of automated disapproval of leases of Indian lands), tribes on the proposed rule and
collection techniques or other forms of where they qualify as ‘‘major Federal potential impacts, and plans to carefully
information technology. actions,’’ will be subject to the NEPA review comments received by tribal
Organizations and individuals who process at the time of the action itself, government officials. These actions
submit comments on the information either collectively or case-by-case. enable tribal officials and the affected
collection requirements should be aware tribal constituency throughout Indian
that the Department keeps such country to have meaningful and timely
input in the development of the final 15.7 What is a self-proved will? deceased Indians other than the Five
rule, while reinforcing positive 15.8 Can I make my will, codicil, or Civilized Tribes, see title 25 Code of Federal
intergovernmental relations with tribal revocation self-proved? Regulations, part 115.
15.9 Do affidavits for my self-proved will,
governments.
codicil, or revocation have to be in a Subpart A—Introduction
K. Energy Effects (Executive Order certain format?
13211) 15.10 Will the Secretary probate all the land § 15.1 What is the purpose of this part?
or assets in an estate? This part contains the procedures that
Executive Order 13211 addresses 15.11 How does the probate process work? we follow to initiate the probate of the
regulations that significantly affect 15.12 What happens if assets in a trust trust estate of a deceased person for
energy supply, distribution, and use. estate may be diminished or destroyed
whom we hold an interest as trust or
The Executive Order requires agencies while the probate is pending?
restricted land or trust personalty. This
to prepare Statements of Energy Effects Subpart B—Starting the Probate Process part tells you how to file the necessary
when undertaking certain actions. In documents to probate the trust estate.
15.101 When should I notify BIA of a
accordance with this Executive Order, death? This part also describes how probates
this rule does not have a significant 15.102 Who may notify BIA of a death? will be processed by BIA, and how
effect on the nation’s energy supply, 15.103 How do I begin the probate process? probates will be sent to the Office of
distribution, or use. The proposed rule 15.104 Does BIA need a death certificate to Hearings and Appeals (OHA) for
is restricted to addressing assets held in prepare a probate file?
15.105 What other documents does BIA disposition.
trust or restricted status for individual
Indians or tribes. need to prepare a probate file? § 15.2 What terms do I need to know?
15.106 Can a probate case be opened when
List of Subjects an owner of an interest has been absent? As used in this part:
15.107 Who prepares a probate file? Act means the Indian Land
25 CFR Part 15 15.108 If the decedent was not an enrolled Consolidation Act and its amendments,
Estates, Indians–law. member of a tribe or was a member of including Public Law 108–374, the
more than one tribe, who prepares the American Indian Probate Reform Act of
25 CFR Part 18 probate file? 2004 (AIPRA).
Estates, Indians–lands. Subpart C—Obtaining Emergency Administrative law judge (ALJ) means
Assistance and Filing Claims an administrative law judge with OHA
25 CFR Part 150 appointed under the Administrative
15.201 Can I get funds from the decedent’s
Indians, Indians–lands. IIM account for funeral services? Procedure Act, 5 U.S.C. 3105.
15.202 If the decedent owed me money, Agency means:
25 CFR Part 152 (1) The Bureau of Indian Affairs (BIA)
how do I file a claim against the estate?
Indians, Indians–lands. agency office, or any other designated
Subpart D—Preparing the Probate File office in BIA, having jurisdiction over
25 CFR Part 179 15.301 What will BIA do with the trust or restricted land and trust
Estates, Indians–lands. documents that I provide? financial assets; and
15.302 What items must BIA include in the (2) Any office of a tribe that has
43 CFR Part 4 probate file?
entered into a contract or compact to
Administrative practice and 15.303 When is a probate file complete?
fulfill the probate function under 25
procedure, Claims. Subpart E—Probate Processing and U.S.C. 450f or 458cc.
43 CFR Part 30 Distributions Attorney Decision Maker (ADM)
15.401 What happens after BIA prepares the means a licensed attorney with OHA
Administrative practice and
probate file? who conducts a summary probate
procedure, Claims, Equal access to 15.402 What happens after the probate file proceeding and renders a decision that
justice, Estates, Indians, Lawyers. is referred to OHA? is subject to de novo review by an
For the reasons given in the preamble, 15.403 What happens after the probate administrative law judge or Indian
the Department of the Interior proposes decision is made?
probate judge.
to amend chapter I of title 25 and part Subpart F—Information and Records BIA means the Bureau of Indian
4 of title 43 for the Code of Federal Affairs within the Department of the
15.501 How can I find out the status of a
Regulations as set forth below. probate? Interior.
Title 25—Indians 15.502 Who owns the records associated Child includes any adopted child.
with this part? Codicil means a supplement or
Chapter I—Bureau of Indian Affairs, 15.503 How must records associated with addition to a will, executed with the
Department of the Interior this part be preserved? same formalities as a will. It may
1. Revise part 15 to read as follows: 15.504 Who may inspect these records? explain, modify, add to, or revoke
15.505 What information must tribes provisions in an existing will.
PART 15—PROBATE OF INDIAN provide BIA to complete the probate file?
ESTATES, EXCEPT FOR MEMBERS OF Consolidation agreement means a
15.506 How does the Paperwork Reduction
THE FIVE CIVILIZED TRIBES Act affect this part? written agreement under the provisions
of 25 U.S.C. 2206(e) or 2206(j)(9), by
Sec. Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, which a decedent’s heirs and devisees
372–74, 410; 44 U.S.C. 3101 et seq.
Subpart A—Introduction consolidate interests in trust or
Cross Reference: For special rules applying restricted land, entered during the
15.1 What is the purpose of this part? to proceedings in Indian Probate
probate process, approved by the judge,
15.2 What terms do I need to know? (Determination of Heirs and Approval of

15.3 Who can make a will disposing of trust Wills, Except for Members of the Five and implemented by the probate order.
or restricted land or trust personalty? Civilized Tribes and Osage Indians), Creditor means any individual or
15.4 What are the requirements for my will? including hearings and appeals within the entity that has a claim for payment from
15.5 Can I revoke my will? jurisdiction of the Office of Hearings and a decedent’s estate.
15.6 Can my will be deemed revoked by the Appeals, see title 43, Code of Federal Day means a calendar day, unless
operation of the law of any state? Regulations, part 4, subpart D; Funds of otherwise stated.
Decedent means a person who is eligible to become a member of any consent. For the purpose of probate
deceased. Indian tribe, or is an owner (as of proceedings, restricted property is
Decision or order (or decision and October 27, 2004) of a trust or restricted treated as if it were trust property.
order) means a written document issued interest in land; Except as the law may provide
by a judge making determinations as to (2) Any person meeting the definition otherwise, the term ‘‘restricted
heirs, wills, devisees, and the claims of of Indian under 25 U.S.C. 479; and property’’ as used in this subpart does
creditors, and ordering distribution of (3) With respect to the inheritance not include the restricted lands of the
trust or restricted land or trust and ownership of trust or restricted land Five Civilized Tribes of Oklahoma or
personalty. Decision or order also means in the State of California under 25 the Osage Nation.
the decision issued by an attorney U.S.C. 2206, any person described in Secretary means the Secretary of the
decision maker in a summary probate paragraph (1) or (2) of this definition or Interior or an authorized representative.
proceeding. any person who owns a trust or The authorized representative of the
Department or DOI means the restricted interest in a parcel of such Secretary for the performance of probate
Department of the Interior. land in that State. functions is BIA. The authorized
Devise means a gift of property by Indian probate judge (IPJ) means a representative for adjudication of
will. Also, to give a gift of property by licensed attorney, employed by OHA, probate is OHA.
will. other than an ALJ, to whom the Summary probate proceeding means
Devisee means a person or entity that Secretary has delegated the authority to the consideration of a probate file
receives property under a will. hear and decide Indian probate cases
Eligible heir means for the purposes of without a hearing and on the basis of
under 5 U.S.C. 556(b). the probate file received from BIA. A
the Act, 25 U.S.C. 2206, any of a Interested party means:
decedent’s children, grandchildren, summary probate proceeding may be
(1) Any potential or actual heir;
great grandchildren, full siblings, half conducted if the estate involves only
(2) Any devisee under a will;
siblings by blood, and parents who are: (3) Any person or entity asserting a trust personalty and does not exceed the
(1) Indian; claim against a decedent’s estate; amount of $5,000 on the date of the
(2) Lineal descendents within two (4) Any tribe having a statutory option decedent’s death.
degrees of consanguinity of an Indian; to purchase the trust or restricted Superintendent means a BIA
or property interest of a decedent; or Superintendent or other BIA official,
(3) Owners of a trust or restricted (5) A co-owner exercising a purchase including a field representative or one
interest in a parcel of land for purposes option. holding equivalent authority.
of inheriting, by descent, renunciation, Intestate means the decedent died Testate means the decedent executed
or consolidation agreement, another without a valid will. a valid will.
trust or restricted interest in such parcel Judge means an administrative law Trust personalty means all funds and
from the decedent. judge (ALJ) or Indian probate judge (IPJ). securities of any kind which are held in
Estate means the trust or restricted LTRO means the Land Titles and trust in an IIM account or otherwise
land and trust personalty owned by the Records Office within BIA. supervised by the Secretary.
decedent at the time of death. OHA means the Office of Hearings Trust property means real or personal
Form OHA–7 means a form (or an and Appeals within the Department of property, or an interest therein, for
automated database equivalent) used by the Interior. which the United States holds the title
BIA to record data for heirship and OST means the Office of the Special
to the property in trust for the benefit of
family history, including but not limited Trustee for American Indians within the
an individual Indian or tribe.
to information on any wills, trust and Department of the Interior.
restricted land, marriages, births, Probate means the legal process by We or us means the Secretary, an
deaths, adoptions, and names and which applicable tribal, Federal, or state authorized representative of the
addresses of all interested parties. law that affects the distribution of a Secretary, or the authorized employee or
Formal probate proceeding means a decedent’s estate is applied to: representative of a tribe performing
trial-type proceeding, conducted by a (1) Determine the heirs; probate functions under a contract or
judge, in which evidence is obtained (2) Determine the validity of wills and compact approved by the Secretary. The
through the testimony of witnesses and determine devisees; Secretary may change the designation of
the receipt of relevant documents. (3) Determine whether claims against the authorized representative at any
Heir means any individual or entity the estate will be paid from trust funds; time.
eligible to receive trust or restricted land and Will means a written document
or trust personalty from a decedent in (4) Order the transfer of any trust or executed with the required formalities
an intestate proceeding. restricted land or trust personalty to the and intended to pass the testator’s
I means, in question headings, an heirs, devisees, or other persons or property upon death.
heir, a devisee, an owner of trust or entities entitled by law to receive the You means, in regulatory text, an heir
restricted land or trust personalty, or a funds or land. or devisee or owner of trust or restricted
creditor. Probate staff means a DOI or tribal property or trust personalty, unless a
Individual Indian Money (IIM) employee who is trained in probate specific section defines ‘‘you’’ to have
account means funds held in trust in an matters and who is responsible for another meaning.
individual Indian money (IIM) account preparing the probate file.
by OST or by a tribe performing this Purchase option at probate refers to § 15.3 Who can make a will disposing of
the process by which eligible purchasers trust or restricted land or trust personalty?
function under a contract or compact.
These funds also are defined as the can purchase a decedent’s interest Any person 18 years of age or over
‘‘trust personalty.’’ during the probate proceeding. and of testamentary capacity, who has
Indian means, for the purposes of the Restricted property means real any right, title, or interest in trust or
Act, 25 U.S.C. 2206: property, the title to which is held by an restricted land or trust personalty, may
(1) Any person who is a member of a Indian but which cannot be alienated or dispose of trust or restricted land or
federally recognized Indian tribe, is encumbered without the Secretary’s trust personalty by will.
§ 15.4 What are the requirements for my the presence of both witnesses; that they § 15.11 How does the probate process
will? signed the same as witnesses in my presence work?
You must date and execute your will and in the presence of each other; that said The basic steps of the probate process
in writing and have it attested by two will was read and explained to me (or read
are:
by me), after being prepared and before I
disinterested adult witnesses. (a) We find out about a person’s death
signed it, and it clearly and accurately
expresses my wishes; and that I willingly (see subpart B of this part for details);
§ 15.5 Can I revoke my will?
made and executed said will as my free and (b) We prepare a probate file that
Yes. You may revoke your will at any voluntary act and deed for the purposes includes documents sent to the agency
time. You may revoke your will by any therein expressed. (see subpart C of this part for details);
means authorized by tribal or Federal (c) We refer the completed probate file
lllllllllllllllllllll
law, including executing a subsequent Testator to OHA for assignment to a judge or
will or other writing with the same ADM (see subpart D of this part for
formalities as are required for execution (b) Format for attesting witnesses’
details); and
of a will. affidavit:
(d) The judge or ADM decides how to
§ 15.6 Can my will be deemed revoked by We, llll and llll, each being first distribute any trust or restricted land
operation of the law of any state? duly sworn, on oath, depose and state: That and/or trust personalty, and we make
on the l day of l, 20l, l, a member of
No will that is subject to the the distribution (see subpart D of this
the llll Tribe of Indians of the State of
regulations of this subpart will be llll, published and declared the part for details).
deemed to be revoked by operation of attached instrument to be his/her last will § 15.12 What happens if assets in a trust
the law of any State. and testament, signed the same in the estate may be diminished or destroyed
presence of both of us, and requested both of while the probate is pending?
§ 15.7 What is a self-proved will? us to sign the same as witnesses; that we, in
A self-proved will employs an compliance with his/her request, signed the (a) This section applies if an
affidavit, attached to the will, signed by same as witnesses in his/her presence and in interested party or BIA:
the testator and the witnesses before an the presence of each other; that said testator (1) Learns of the death of a person
officer authorized to administer oaths, was not acting under duress, menace, fraud, entitled to trust or restricted property;
or undue influence of any person, so far as and
certifying that they complied with the
we could ascertain, and in our opinion was (2) Determines that an emergency
requirements of execution of the will. mentally capable of disposing of all his/her
Using an affidavit executed at the same exists and the assets in the trust estate
estate by will.
time as the will avoids the need for the may be significantly diminished or
lllllllllllllllllllll destroyed before the final decision and
testimony of the will witnesses at Witness
probate to prove the execution of the order of a judge in a probate case.
lllllllllllllllllllll (b) The interested party or BIA may:
will.
Witness (1) Request the immediate assignment
§ 15.8 Can I make my will, codicil, or Subscribed and sworn to before me thislday of a judge or ADM for the probate case;
revocation self-proved? of l, 20l, by llll testator, and by (2) Transmit or request the transfer of
Yes. A will, codicil, or revocation may llll and llll, attesting witnesses. a probate file to OHA containing
be made self-proved as provided in this lllllllllllllllllllll sufficient information on potential
section. lllllllllllllllllllll interested parties and documentation
(a) A will, codicil, or revocation concerning the emergency alleged for a
(Title)
executed as provided in § 15.4 may be judge to consider emergency relief in
made self-proved by the testator and § 15.10 Will the Secretary probate all the order to preserve estate assets; and
attesting witnesses at the time of its land or assets in an estate? (3) Request an expedited hearing or
execution. (a) We will probate only the trust or consideration of ex parte relief to
(b) The testator and the attesting restricted land or trust personalty in an prevent impending or further loss or
witnesses must make these affidavits estate. destruction of trust assets.
before an officer authorized to (b) We will not probate the following (c) The Superintendent or other
administer oaths, and the affidavits property: authorized representative of BIA is
must be attached to the will. granted the standing necessary to
(1) Real or personal property other
§ 15.9 Do affidavits for my self-proved will, than trust or restricted land or trust request relief under this section.
codicil, or revocation have to be in a certain personalty in an estate of a decedent;
format? (2) Restricted land derived from Subpart B—Starting the Probate
Yes, the affidavits of the testator and allotments made to members of the Five Process
attesting witnesses must be in Civilized Tribes (Cherokee, Choctaw, § 15.101 When should I notify BIA of a
substantially the following form and Chickasaw, Creek and Seminole) in death?
content. Oklahoma; and There is no deadline for notifying us
(a) Format for testator’s affidavit: (3) Restricted interests derived from of a death.
Tribe of llll or allotments made to Osage Indians in (a) Notify us as provided in § 15.103
State of llll Oklahoma (Osage Nation) and Osage to assure timely distribution of the
County of llll ss. headright interests owned by Osage estate.
I, llll, being first duly sworn, on oath, decedents. (b) If we find out about the death of
depose and say: That I am an llll (c) We will probate that part of the a person and if the decedent meets the
(enrolled or unenrolled) member of the estate of a deceased member of the Five

llll Tribe of Indians in the State of criteria in § 15.3, we will initiate the
llll; that on the l day of l , 20l, that
Civilized Tribes or Osage Nation who process to collect the necessary
I requested llll and llll to act as owns a trust interest in land or a documentation.
witnesses thereto; that I declared to said restricted interest in land derived from
witnesses that said instrument was my last an individual Indian other than the Five § 15.102 Who may notify BIA of a death?
will and testament; that I signed said will in Civilized Tribes or Osage Nation. Anyone may notify us of a death.
§ 15.103 How do I begin the probate (g) A list of known claims by creditors § 15.108 If the decedent was not an
process? of the decedent against the estate and enrolled member of a tribe or was a member
As soon as possible, contact any of the their addresses, including copies of any of more than one tribe, who prepares the
following to inform us of the decedent’s court judgments; and probate file?
death: Unless otherwise provided by Federal
(h) Documents, certified if possible,
(a) The BIA agency or regional office law, the agency that has jurisdiction
from the appropriate authorities
nearest to where the decedent was over the tribe with the strongest
concerning the public record of the
enrolled; association with the decedent will serve
decedent, including but not limited to,
(b) Any BIA agency or regional office; as the home agency and will prepare the
any:
(c) The tribe where the decedent was probate file if the decedent either:
(1) Marriage licenses of the decedent, (a) Was not an enrolled member of a
enrolled; or
(d) The Trust Beneficiary Call Center (2) Divorce decrees of the decedent, tribe but owns interests in trust or
at (888) 678–6836 ext. 0. (3) Adoption and guardianship restricted land or trust personalty; or
records concerning the decedent or the (b) Was a member of more than one
§ 15.104 Does BIA need a death certificate tribe.
decedent’s potential heirs or devisees;
to prepare a probate file?
(a) We require a certified copy of the (4) Use of other names by the Subpart C—Obtaining Emergency
death certificate if a certified copy decedent, including copies of name Assistance and Filing Claims
exists. If necessary, we will make a copy changes by court order; and
(5) Order requiring payment of child § 15.201 Can I get funds from the
from your certified copy for our use and decedent’s IIM account for funeral
return your copy. support or spousal support. services?
(b) If a certified copy of the death § 15.106 Can a probate case be opened (a) You may ask us for up to $1,000
certificate does not exist, you must when an owner of an interest has been from the decedent’s IIM account in the
provide as much information as you can absent? following situations:
concerning the deceased, such as: (1) You are responsible for making the
(1) The State, city, reservation, (a) A probate case may be opened
when information is provided to us that funeral arrangements on behalf of the
location, date, and cause of death; family of a decedent who had an IIM
(2) The last known address of the an owner of an interest in trust or
restricted land or trust personalty has account;
deceased; names and addresses of others (2) You have an immediate need to
who may have information about the been absent without explanation for a
period of at least six years. pay for funeral arrangements before
deceased; and any other information burial; and
available concerning the deceased, such (b) When we receive that information, (3) The decedent’s IIM account
as newspaper articles, obituary, or death we will begin an investigation into the contains more than $2,500 on the date
notices or a church or court record. unexplained absence, and will attempt of death.
(c) If no certified copy of a death to locate the absent person. We may: (b) You must apply for assistance
certificate exists, we require an affidavit (1) Search available electronic under paragraph (a) of this section and
stating as much of the information set databases; submit to us an original itemized
forth in paragraph (b) of this section as (2) Inquire into other published estimate of the cost of the service to be
is available, as well as any other information sources such as telephone rendered and the identification of the
information available concerning the directories and other available service provider.
decedent. directories; (c) We may approve reasonable costs
up to $1,000 that are necessary for the
§ 15.105 What other documents does BIA (3) Examine BIA land title and lease
need to prepare a probate file? burial services, taking into
records;
consideration:
In addition to the certified copy of a (4) Examine the IIM account ledger for (1) The total amount in the account;
death certificate or other reliable disbursements from the account; and (2) The number of potential heirs or
evidence of death listed in § 15.104, we beneficiaries of whom BIA is aware;
(5) Engage the services of an
need the following information and (3) The amount of any claims against
independent firm to conduct a search
documents: the account of which BIA is aware;
for the absent owner.
(a) Originals or copies of all wills, (4) The availability of non-trust funds;
codicils, and revocations, or other (c) When we have completed our
investigation, if we are unable to locate and
evidence that a will may exist; (5) Any other relevant factor.
(b) Social Security number of the the absent person, we will open a
probate case and prepare a file that will (d) We will make payments directly to
decedent; the providers of the services.
(c) The place of enrollment and the include all the documentation
tribal enrollment or census number of developed in the search. § 15.202 If the decedent owed me money,
the decedent and potential heirs or (d) We may file a claim in the probate how do I file a claim against the estate?
devisees; case to recover the reasonable costs If a decedent owed you money, you
(d) Current names and addresses of expended to contract with an can make a claim against the estate of
the decedent’s potential heirs and independent firm to conduct the search. the decedent before the probate file is
devisees; transferred to OHA. To do this, you may
§ 15.107 Who prepares a probate file?
(e) Any sworn statements regarding submit to us an affidavit under oath of
the decedent’s family, including any The probate staff at the agency or tribe the debt alleged and an itemized
statements of paternity or maternity; where the decedent is an enrolled statement of the debt, including copies
(f) Any statements renouncing an member will prepare the probate file in of any documents (such as signed notes,
interest in the estate including consultation with the potential heirs or mortgages, account records, billing
identification of the person or entity in devisees who can be located, and with records, and journal entries) necessary
whose favor the interest is renounced, if other people with information about the to prove the indebtedness. You may also
any; decedent or the estate. file your claim as a creditor with OHA
after the probate file has been trust or restricted interest in land, the information listed in § 15.302 that is not
transferred and pending adjudication date on which the individual became available.
has not been completed if you comply the owner of the trust or restricted
with 43 CFR 30.140–30.148. interest; Subpart E—Probate Processing and
(a) The itemized statement must show (d) A certified inventory of trust or Distributions
the amount of the original debt and the restricted land, including:
(1) Accurate and adequate § 15.401 What happens after BIA prepares
remaining balance on the date of the the probate file?
decedent’s death. descriptions of all land and
appurtenances; After we assemble all the documents
(b) The affidavit must state whether
(2) All encumbrances on the land, required by § 15.302, our probate staff
you have filed a claim or sought
including but not limited to leases, will:
reimbursement against the decedent’s
mortgages, and rights of way; (a) Refer the case to OHA for
non-trust assets and whether you have
(3) Identification of any interests that assignment to a judge or ADM; and
filed a claim for the same debt in any (b) Forward a list of fractional
other judicial or quasi-judicial represent less than 5% of the undivided
interest in a parcel; and interests that represent less than 5
proceeding. percent of the entire undivided
(4) Identification of all income
(c) Secured creditors must first ownership of each parcel of land in the
generating activity, such as leases or
exhaust the security before submitting a decedent’s estate to the Indian Land
rights of way and any assignments of
claim against trust personalty for any Consolidation Office and to the tribes
such income;
deficiency. Submit a certified copy of a with jurisdiction over those interests.
(e) A statement showing the balance
judgment of a court of competent
of the decedent’s IIM account at the date
jurisdiction determining the deficiency. § 15.402 What happens after the probate
of death;
(d) File your claim before the (f) A statement showing all file is referred to OHA?
conclusion of the first hearing or, for disbursements from the decedent’s IIM (a) When OHA receives the probate
cases designated as summary probate account after the date of death; file from BIA, it will assign the case to
proceedings, as allowed under 43 CFR (g) Originals or copies of all wills, a judge or ADM. The judge or ADM will
30.202. Claims not filed by then will be codicils, and revocations; conduct the probate proceeding and
barred forever. (h) A copy of any statement or issue a written decision and an order, in
document concerning any wills, codicils accordance with 43 CFR part 4, subpart
Subpart D—Preparing the Probate file or revocations we have returned to the D.
§ 15.301 What will BIA do with the testator; (b) If BIA receives any claims from
documents that I provide? (i) Any statement renouncing an creditors after the probate file is
After we receive notice of the death of interest in the estate that has been transmitted to OHA, but before the order
a person owning trust or restricted land submitted to us, and the information is issued, BIA must promptly transmit
or trust personalty, we will examine the necessary to identify any person those claims to OHA.
documents provided under §§ 15.104 receiving a renounced interest;
(j) Claims of creditors, including § 15.403 What happens after the probate
and 15.105, and other documents and decision is made?
information you may provide to prepare documentation required by § 15.202;
(k) Documentation of any payments Once the probate decision is made:
a complete probate file. We will consult (a) You have 30 days from the
made on claims filed under the
with you and any other sources to decision or order mailing date to file a
provisions of § 15.201;
obtain additional information to (l) All the documents acquired under written request for a de novo review, a
complete the probate file. Then we will § 15.105; request for rehearing or an appeal, in
transfer the probate file to OHA. (m) The record of each tribal or accordance with 43 CFR part 30;
§ 15.302 What items must BIA include in individual request to purchase a trust or (b) When you file a timely request for
the probate file? restricted land interest at probate; de novo review, a request for rehearing,
(n) The record of any individual or an appeal, we will not pay claims,
BIA must query available sources of
request for a consolidation agreement, transfer title to land, or distribute trust
information to locate and include the
including a description, such as an personalty until the request or appeal is
following items in the probate file:
Individual/Tribal Interest Report, of any resolved; and
(a) The evidence of death of the
lands not part of the decedent’s estate (c) If no interested party timely files
decedent as provided by § 15.104;
that are proposed for inclusion in the a request or appeal, we will wait at least
(b) A completed Form OHA–7, ‘‘Data
consolidation agreement; and 10 days after the 30 day period stated
for Heirship Findings and Family
(o) An affidavit by the probate staff, if in paragraph (a) of this section before
History,’’ certified by BIA, with the
applicable, certifying that the paying claims, transferring title to land,
enrollment or other identifying number
Department has complied with 25 or distributing trust personalty, then:
shown for each potential heir or
U.S.C. 2201 et seq in attempting to (1) The LTRO will change its land
devisee, if such number has been
locate missing potential heirs and title records for the trust and restricted
assigned;
devisees and identifying the steps that land in accordance with the final
(c) Information provided by potential
were taken. decision or order; and
heirs, devisees or the tribes on:
(2) We will pay claims and distribute
(1) Whether the heirs and devisees § 15.303 When is a probate file complete?
the IIM account in accordance with the
meet the definition of ‘‘Indian’’ for A probate file is complete for transfer final decision or order.
probate purposes, including enrollment to OHA when a BIA approving official
or eligibility for enrollment in a tribe; includes a certification that: Subpart F—Information and Records
(2) Whether the potential heirs or (a) States that the probate file includes
devisees are within two degrees of all information listed in § 15.302 that is § 15.501 How can I find out the status of
consanguinity of an ‘‘Indian’’; and available; and a probate?
(3) If an individual only qualifies as (b) Lists all sources of information You may contact any BIA agency or
an Indian because of ownership of a BIA queried in an attempt to locate regional office, an OST fiduciary trust
officer or the Trust Beneficiary Call 15.201, 15.202, 15.403, 15.505 have Consolidation Act (ILCA) Amendments
Center at (888) 678–6836 ext. 0, to get been approved by the Office of of 2000 which are to:
information about the status of an Management and Budget under 44 (1) Prevent further fractionation;
Indian probate. U.S.C. 3501 et seq. and assigned OMB (2) Consolidate fractional interests
Control Number 1076–xxxx. Response is into useable parcels;
§ 15.502 Who owns the records associated required to obtain a benefit. A Federal
with this part? (3) Consolidate fractional interests to
agency may not conduct or sponsor, and enhance tribal sovereignty;
(a) The United States owns the you are not required to respond to a (4) Promote tribal self-sufficiency and
records associated with this part if they: collection of information unless the self-determination; and
(1) Are made by or on behalf of the form or regulation requesting the
United States; (5) Reverse the effects of the allotment
information has a currently valid OMB policy on Indian tribes;
(2) Are made or received by a tribe or Control Number.
tribal organization in the conduct of a (b) The tribal probate code must
2. Add part 18 to subchapter C to read allow:
federal trust function under this part, as follows:
including the operation of a trust (1) An Indian lineal descendant of the
program under Public Law 93–638 as PART 18—TRIBAL PROBATE CODES original allottee to inherit; and
amended; and (2) An Indian who is not a member of
(3) Are evidence of the organization, Sec. the Indian tribe with jurisdiction over
18.1 May a tribe adopt its own probate the interest in land to inherit; and
functions, policies, decisions, code?
procedures, operations, or other 18.2 When does a code require our
(c) A tribe may limit the individuals
activities undertaken in the performance approval? in paragraphs (b)(1) and (2) of this
of a federal trust function under this 18.3 What will you consider in the approval section if the code:
part. process? (1) Allows those individuals to
(b) The tribe owns the records 18.4 How does a tribe request approval for renounce their interests to eligible
associated with this part if they: a probate code? devisees in accordance with the tribal
(1) Are not covered by paragraph (a) 18.5 When will you approve or disapprove code;
a probate code or amendment?
of this section; and 18.6 What happens if the probate code or
(2) Allows a devisee spouse or lineal
(2) Are made or received by a tribe or amendment is approved? descendant of the testator or of the
tribal organization in the conduct of 18.7 How is a tribe notified of a original allottee to reserve a life estate
business with the Department of the disapproval? without regard to waste; and
Interior under this part. 18.8 When will a tribal probate code (3) Allows for the payment of fair
become effective? market value as determined by us on the
§ 15.503 How must records associated 18.9 What will happen if a tribe repeals its date of the decedent’s death.
with this part be preserved? probate code?
(a) Any organization that has records 18.10 How does the Paperwork Reduction § 18.4 How does a tribe request approval
identified in § 15.502(a), including Act affect this part? for a probate code?
tribes and tribal organizations, must Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, (a) To begin the approval process for
preserve the records in accordance with 372–74, 410; 44 U.S.C. 3101 et seq; 25 CFR either a tribal probate code or
approved Departmental records part 15; 43 CFR part 4.
amendment to the code, the tribe must
retention procedures under the Federal § 18.1 May a tribe adopt its own probate submit to the local Bureau Official as
Records Act, 44 U.S.C. chapters 29, 31, code? defined in 25 CFR 82.1(h):
and 33; and (a) A tribe may adopt a probate code (1) Its probate code or an amendment
(b) A tribe or tribal organization must to govern descent and distribution of to an existing code; and
preserve the records identified in trust and restricted lands located within (2) A duly executed tribal resolution
§ 15.502(b) for the period authorized by the tribe’s reservation or otherwise adopting the code or the amendment.
the Archivist of the United States for subject to the tribe’s jurisdiction. The (b) The local Bureau Official will
similar Department of the Interior code may include: make sure that a complete copy of the
records under 44 U.S.C. chapter 33. (1) Rules of intestate succession; and code and the resolution is submitted to
(2) Other provisions consistent with the Assistant Secretary—Indian Affairs
§ 15.504 Who may inspect these records?
Federal law that promote the policies in for approval.
The records and records management § 18.3.
practices and safeguards required under (b) A tribe may adopt a single heir § 18.5 When will you approve or
the Federal Records Act are subject to rule for intestate succession specifying a disapprove a probate code or amendment?
inspection by BIA and the Archivist of recipient other than the one provided by (a) We have 180 days from submission
the United States. 25 U.S.C. 2206(a)(2)(D). of a complete package to the local
§ 15.505 What information must tribes Bureau Official to approve or
§ 18.2 When does a code require our
provide BIA to complete the probate file? disapprove a tribal probate code.
approval?
The tribes must provide any (b) We have 60 days from submission
Only those tribal probate codes that of an amendment of the tribal probate
information that we require or request to govern the descent and distribution of
complete the probate file. This code to approve or disapprove the
trust and restricted lands require our amendment.
information may include enrollment approval.
and family history data or property title (c) If we do not meet the deadlines in
documents that pertain to any pending § 18.3 What will you consider in the paragraphs (a) or (b) of this section, the
probate matter. approval process? tribal probate code or the amendment to

We will consider the following in the code will be deemed approved, but
§ 15.506 How does the Paperwork determining whether to approve a tribal only to the extent that it:
Reduction Act affect this part? probate code: (1) Is consistent with Federal law; and
The collections of information (a) The code must promote the (2) Promotes the policies of the ILCA
contained in §§ 15.4, 15.104, 15.105, policies of the Indian Land Amendments of 2000 as listed in § 18.3.
§ 18.6 What happens if the probate code or PART 150—INDIAN LAND RECORD OF specifically with land records of the Five
amendment is approved? TITLE Civilized Tribes. Act of February 14, 1920 (41
Our approval applies only to those Stat. 415) amended March 1, 1933 (47 Stat.
sections of the tribal probate code that Subpart A—Purpose, Definitions, and 1417; 25 U.S.C. 413); 5 U.S.C. 552a; 25 U.S.C.
Public Information 14b; and 31 U.S.C. 9701.
govern the descent and distribution of
trust or restricted land. We will: Cross-reference: For further
Sec.
(1) Notify the tribe of the approval regulations pertaining to proceedings in
150.1 What is the purpose of this part?
and forward a copy of the code or 150.2 What terms do I need to know? Indian probate, see 43 CFR part 4,
amendment to the Office of Hearings 150.3 When can I see land and title subpart D, 43 CFR part 30, and 25 CFR
and Appeals; and information from the Indian Land Record part 15.
(2) Publish a notice of the date of the of Title?
approval in the Federal Register. 150.4 Do I have to be an Indian or a tribe Subpart A—Purpose, Definitions and
to obtain products or services from the Public Information
§ 18.7 How is a tribe notified of a Land Titles and Records Office?
disapproval? § 150.1 What is the purpose of this part?
Subpart B—The Indian Land Record of Title
If we disapprove a tribal probate code Designation as the Official Record of Indian
The purpose of this part is to describe
or amendment, we must provide the Land the authorities, policies, and procedures
tribe with a written notification of the used for:
150.101 Must all title instruments affecting
disapproval that includes: Indian land be recorded in the Indian
(a) Recording instruments that affect
(a) An explanation of the reasons for Land Record of Title? title to Indian land;
the disapproval; and 150.102 Do I have to check with any other (b) Maintaining copies of title
(b) Notification that the tribe may governmental office to find title instruments;
appeal the disapproval directly to the instruments to Indian land? (c) Maintaining the Indian Land
Interior Board of Indian Appeals under Subpart C—LTRO Procedures and Record of Title;
25 CFR part 2. Requirements to Record Instruments in the (d) Certifying title instruments of
Indian Land Record of Title Indian land;
§ 18.8 When will a tribal probate code (f) Examining and determining title
become effective? 150.201 Who maintains the Indian Land
Record of Title? status;
(a) A tribal probate code may not (g) Preparing reports on the title of
150.202 Where is the LTRO located?
become effective sooner than 180 days 150.203 Who submits the title instruments Indian land; and
after the date of approval. for recording? (h) Designating the Indian Land
(b) The tribal probate code or 150.204 What does the LTRO do with the Record of Title as the official record for
amendment will apply only to the estate instruments it receives? instruments that affect title to Indian
of a decedent who dies on or after the 150.205 What are the minimum land.
effective date of the tribal probate code requirements for recording a title
or amendment. instrument? § 150.2 What terms do I need to know?
150.206 What if the LTRO discovers a
defect or error in a document?
As used in this part:
§ 18.9 What will happen if a tribe repeals
its probate code? 150.207 What if a defect or error in a final BIA means the United States
probate record cannot be corrected? Department of the Interior Bureau of
(a) If a tribe repeals its tribal probate
150.208 How do I correct an error or Indian Affairs.
code, the repeal: omission in a title instrument or LTRO Constructive notice means
(1) Will not become effective sooner product or service? information or knowledge of a fact
than 180 days from the date we receive 150.209 What instruments qualify for imputed by law to a person even if such
notification from the tribe of its decision recording with the LTRO? person has no actual knowledge of the
to repeal the code; and 150.210 Does the LTRO maintain the
fact.
(2) Will apply only to the estate of a original title instruments?
150.211 May I obtain a copy of the title Federal government means the
decedent who dies on or after the
instrument from the LTRO? government of the United States.
effective date of the repeal.
(b) We will: 150.212 Is there any benefit to obtaining a Government offices mean the Federal,
(1) Forward a copy of the repeal to the certified copy of the title? state, county, and municipal
Office of Hearings and Appeals; and Subpart D—Services and Products of the government.
(2) Publish a notice of the date of LTRO Indian land means land held in trust
repeal in the Federal Register. status or restricted status, or certain
150.301 What services and products may I
order from the LTRO? Federal government land that is under
§ 18.10 How does the Paperwork 150.302 How do I order services and the jurisdiction of BIA.
Reduction Act affect this part? products from the LTRO? Indian Land Record of Title means the
The collection of information 150.303 Does BIA charge fees for any of the record of title instruments for Indian
contained in § 18.4 has been approved services provided by, or products land under the Act of July 26, 1892, 27
by the Office of Management and produced by, the LTRO? Stat.272; 25 U.S.C. 5.
Budget under 44 U.S.C. 3501 et seq. and 150.304 What will the LTRO do if the Instrument means a document in
instrument contains information that is writing, including, but not limited to, a
assigned OMB Control Number 1076-
privileged or protected?
xxxx. Response is required to obtain a 150.305 How does the Paperwork
contract, deed, will, bond, judicial or
benefit. A Federal agency may not Reduction Act affect this part? administrative order, lease, or easement,
conduct or sponsor, and you are not including a map or plat.
Authority: Act of June 30, 1834 (4 Stat. Interest, when used with respect to
required to respond to a collection of
738; 25 U.S.C. 9). Act of July 26, 1892 (27
information unless the form or Stat. 272; 25 U.S.C. 5). Reorganization Plan
Indian land, means a present or future
regulation requesting the information No. 3 of 1950 approved June 20, 1949 (64 right in trust or restricted land.
has a currently valid OMB Control Stat. 1262). (Act of April 26, 1906 (34 Stat. Land means real estate.
Number. 137); Act of May 27, 1908 (35 Stat. 312); Act Land Titles and Records Office
3. Revise part 150 to read as follows: of August 1, 1914 (38 Stat. 582, 598) deals (LTRO) means the office within BIA that
is responsible for maintaining the current interests, and related Subpart C—LTRO Procedures and
Indian Land Record of Title by documents. Requirements to Record Instruments
recording, providing custody, and (c) Owners of an interest in trust or in the Indian Land Record of Title
certifying title instruments in its restricted land within the same
custody, and for examining and § 150.201 Who maintains the Indian Land
reservation, the tribe or any person that Record of Title?
determining the completeness and
is leasing, using, or consolidating, or is The LTRO is the office within BIA
accuracy of the record of interests in
applying to lease, use or consolidate, responsible for maintaining the Indian
Indian land, certifying the findings of
examination, and reporting the status of such trust or restricted land or the Land Record of Title. It records title
interests in Indian land. The Land Titles interest in trust or restricted lands may instruments affecting Indian land,
and Records Office, as used herein, receive names and mailing addresses, certifies copies of images of the
includes tribes which have compacted information on the location of the instruments in the custody of the LTRO,
or contracted to perform some Land parcel, and the percentage of the parcel examines the record and certifies the
Titles and Records functions. owned by each individual, without findings of examinations, and provides
Recording means the entry of the regard to the Privacy Act and any other services and products based upon
information from an instrument into the exemption contained in the Freedom of the information in the record.
Indian Land Record of Title. Recording Information Act, 5 U.S.C. 552.
§ 150.202 Where is the LTRO located?
an instrument in the Indian Land (d) You do not need to make a request
Record of Title gives constructive notice The LTRO has locations throughout
under the Freedom of Information Act the United States. You may contact any
of the instrument’s existence. to see records covered by this section.
Secretary means the Secretary of the BIA office for the current contact
You may submit a request for information.
Interior, or an authorized representative. information to any location of the Land
Title means an interest, or evidence of § 150.203 Who submits the title
Titles and Records Office or BIA as
an interest, in Indian land. instruments for recording?
Title examination means a review and provided in subpart D of this part.
BIA submits most of the title
evaluation by the Land Titles and § 150.4 Do I have to be an Indian or a tribe instruments to the LTRO. Tribes, other
Records Office of the information in the to obtain products or services from the government offices, and individuals
Indian Record of Title for a particular Land Titles and Records Office? may also submit instruments to the
tract of Indian land and a finding that LTRO.
such information is complete, accurate, No. Anyone may receive products and
and current. services offered by the Land Titles and § 150.204 What does the LTRO do with the
Title instrument means any Records Office (LTRO). instruments it receives?
instrument that affects an interest in (a) The LTRO reviews the instrument
Indian land and that the law and Subpart B—The Indian Land Record of
to ensure that it satisfies the minimum
regulations require to be approved or Title Designation as the Official Record requirements for recording. If so, the
recorded. of Indian Land LTRO:
Tribe means any Indian tribe, nation, (1) Makes a true and correct image of
§ 150.101 Must all title instruments
band, pueblo, town, community, affecting Indian land be recorded in the the instrument;
rancheria, colony, or other group of Indian Land Record of Title? (2) Enters the information contained
Indians, which is recognized by the in the instrument affecting the status of
Secretary as eligible for the special The Indian Land Record of Title is the title into the Indian Land Record of
programs and services provided by the official record of title instruments Title; and
Bureau of Indian Affairs, and listed in affecting Indian land and all title (3) Returns the original instrument.
the Federal Register under Public Law instruments must be recorded there, (b) If the instrument does not satisfy
103–454, act of Nov. 2, 1994 (108 Stat. except as provided by other Federal the minimum requirements, the LTRO
4791; 25 U.S.C. 479a). statutory authority. When the LTRO returns the instrument with an
Trust status means the United States records a title instrument in the Indian explanation why the instrument was not
holds title to the property in trust for the Land Record of Title, the public receives accepted for recording.
benefit of a tribe or individual Indian. constructive notice that the title
Restricted status means a tribe or § 150.205 What are the minimum
instrument exists. Title instruments requirements for recording a title
individual Indian holds title to the affecting Indian land within the
property in fee simple subject to Federal instrument?
jurisdiction of the Five Civilized Tribes The minimum requirements for
restrictions on alienation or and the Osage Nation must be recorded
encumbrance. recording an instrument include:
in the county courthouse serving the (a) A legal description of the Indian
You/I means the person reading this
county within which the land is located. land;
regulation.
§ 150.102 Do I have to check with any (b) The signatures of the parties to the
§ 150.3 When can I see land and title instrument;
information from the Indian Land Record of other governmental office to find title
instruments to Indian land? (c) Proper acknowledgment of the
Title?
signatures of the parties; and
(a) You may access, inspect and copy No. The Indian Land Record of Title (d) If required, proper Federal
the information in the Indian Land is the source of all recorded title approval, and the approval date and
Record of Title except where this instruments, except those affecting land authority of the Federal official.
information is subject to the Privacy of the Five Civilized Tribes and Osage
Act, 5 U.S.C. 552a or other law or policy Nation, which are recorded in the § 150.206 What if the LTRO discovers a
restricting access to records. defect or error in a document?
county courthouse serving the county
(b) Information covered by this within which the land is located. (a) If the LTRO discovers the error
section includes information on the after the instrument is recorded, the
location of the land, historical interests, LTRO will notify the submitting person
of the error and make a notation in the § 150.209 What instruments qualify for paragraph (b) of this section. You may
Indian Land Record of Title that an error recording with the LTRO? pay the fee by certified check or money
exists. Only title instruments qualify for order.
(1) Once the interested parties correct recording in the Indian Land Record of (1) A copy of the fee schedule is
the error and the submitting person Title. available from BIA.
returns an instrument evidencing the (2) Contact the LTRO for an estimate
§ 150.210 Does the LTRO maintain the
correction to the LTRO, the LTRO will of the amount of the fee for a service or
original title instruments?
record the instrument in the Indian product.
No. The LTRO returns the original (3) You must pay the entire fee, or
Land Record of Title. instrument to the submitter. minimum fee if the fee is an hourly rate,
(2) In any subsequent title when you request the service or the
examination, the LTRO will rely upon § 150.211 May I obtain a copy of the title
instrument from the LTRO? product from the LTRO. When the
the corrected instrument to determine LTRO delivers the service or the
the title status of the Indian land. Yes. If the Land Titles and Records
Office has recorded the information product to you, you must pay any
(b) If the LTRO discovers a defect or from the title instrument in the Indian remaining amount according to the
error in a final probate record after it has Land Record of Title and has made a hourly rate.
been recorded, the LTRO will issue copy of the title instrument, you may (b) The LTRO may grant an exception
administrative corrections to correct obtain a copy of the title instrument, under the following circumstances:
clerical probate errors, or to add omitted subject to the Freedom of Information (1) If you are an individual Indian and
property or interest as set forth in 43 Act and the Privacy Act considerations are recording a transaction that reduces
CFR 30.126. Other defects or errors will as described in § 150.3. the number of owners of undivided
be addressed through the probate interests in a tract of Indian land;
process as provided in 43 CFR part 30. § 150.212 Is there any benefit to obtaining (2) If you are an individual Indian and
a certified copy of the title? are recording an instrument to transfer
§ 150.207 What if a defect or error in a final Yes. If the LTRO certifies a copy of
probate record cannot be corrected?
your undivided interest in Indian land
the title instrument, you may use the to a tribe;
If a defect or error in a final probate certified copy in court or elsewhere, the (3) If you are a tribe and recording a
record cannot be corrected, the LTRO same as the original instrument. transaction that will consolidate the
will notify the appropriate deciding ownership interests of a tract of Indian
official, as provided in 43 CFR 30.126 Subpart D—Services and Products of land; or
and 30.127, and make a notation in the the LTRO (4) You are an agency or office within
Indian Land Record of Title that a § 150.301 What services and products may the Department of the Interior or the
possible error exists. I order from the LTRO? Department of Justice.
(a) Once the deciding official corrects You may obtain a list of services and (c) The LTRO will charge you a
the error and submits an instrument products provided by the LTRO from minimum fee even if the LTRO is
evidencing the correction to the LTRO, the LTRO or BIA. Services include: unable to provide the service or the
the LTRO will record the instrument in (a) Recording title instruments; product, unless the LTRO grants an
the Indian Land Record of Title. (b) Providing certified and uncertified exception under paragraph (b) of this
copies of images of title instruments section.
(b) In any subsequent title
recorded in the Indian Land Record of (d) The LTRO will refund your fee for
examination, the LTRO will rely upon
Title; and any information that cannot be
the corrected instrument to determine
(c) Producing reports. delivered to you because of the Privacy
the title status of the Indian land.
Act (5 U.S.C. 552a) or other law or
§ 150.208 How do I correct an error or § 150.302 How do I order services and policy restricting access to the records.
omission in a title instrument or LTRO products from the LTRO?
product or service? (a) You may submit your written § 150.304 What will the LTRO do if the
request for services and products to any instrument contains information that is
(a) To correct an error or omission, location of the LTRO or BIA.
privileged or protected?
you may submit a written description of (b) You must include either a legal If information is protected under the
the error or omission with any description of the land, the Privacy Act, or cannot be provided to
supporting documentation to the identification number of the tract, or the you because of 5 U.S.C. 552a or another
approving official or to the LTRO. identification number of an owner of an law or policy restricting access, the
(b) After receiving the description of interest in the tract. LTRO will:
the error, the LTRO will conduct an (c) You may submit other information (a) Redact the information; and
investigation. If the LTRO determines that the LTRO may use to identify an (b) Provide you with the remaining
that there is an error or omission in the owner of an interest in the tract of land, information or an altered copy of the
product or service, it will correct the including but not limited to: name and image of the instrument.
product or service. tribal affiliation of an owner, the
§ 150.305 How does the Paperwork
(1) If there is an error or omission in recording number of the instrument, or Reduction Act affect this part?
the information in the Indian Land an allotment number.
The collections of information
Record of Title, it will correct the error § 150.303 Does BIA charge fees for any of contained in §§ 150.208, 150.302(b), and
or omission based upon the image or the services provided by, or products 150.302(c), have been approved by the
original copy of the title instrument produced by, the LTRO? Office of Management and Budget under
from which it obtained the information. (a) BIA charges fees for certain 44 U.S.C. 3501 et seq. and assigned
(2) If there is an error or omission in services and products provided by the OMB Control Number 1076–xxxx.
the title instrument, it will follow the LTRO. All persons who receive services Response is required to obtain a benefit.
procedures set forth in §§ 150.206 and products from the LTRO will be A Federal agency may not conduct or
through 150.208. assessed a fee, except as provided in sponsor, and you are not required to
respond to, a collection of information 152.3 Will the Secretary provide ownership 152.218 What if there are liens or other
unless the form or regulation requesting information? encumbrances on the lands to be
the information has a currently valid 152.4 To whom will the Secretary provide conveyed?
OMB Control Number. ownership information? 152.219 How does a transaction affect
152.5 Which subparts do not apply to collection of construction costs for
PART 152—CONVEYANCES OF TRUST Alaska? irrigation projects?
OR RESTRICTED INDIAN LAND; Subpart B—Sales and Exchanges of Tribal Subpart D—Tribal Parcel Purchase
REMOVAL OF TRUST OR Trust or Restricted Land 152.301 What lands are covered by this
RESTRICTED STATUS 152.101 What transactions are covered by subpart?
this subpart? 152.302 What transactions are covered by
4. The authority citation for part 152
this subpart?
continues to read as follows: Sales and Exchanges Under a Land
152.303 How does a tribe apply for a parcel
Consolidation Plan
Authority: 25 U.S.C. 2201–2204, 2212– purchase?
2216, Indian Land Consolidation Act, 97 Pub. 152.102 What must a land consolidation 152.304 How and when will owners be
L. 459, 96 Stat. 2515 (Jan. 12, 1983), as plan include? notified of an application for tribal
amended; American Indian Probate Reform 152.103 Are there any restrictions on a land parcel purchase?
Act (AIPRA) of 2004, 108 P.L. 374, 118 Stat. consolidation plan? 152.305 Can an individual owner preempt
1773 (Oct. 24, 2004); R.S. 161; 5 U.S.C. 301. 152.104 How does the Secretary approve a and succeed a tribe’s right to purchase?
Interpret or apply sec. 7, 32 Stat. 275, 34 Stat. land consolidation plan? 152.306 How and when will the Secretary
1018, sec. 1, 35 Stat. 444, sec. 1 and 2, 36 152.105 How does a tribe receive approval review an application for parcel
Stat. 855, as amended, 856, as amended, sec. for a sale or exchange under a land purchase?
17, 39 Stat. 127, 40 Stat. 579, 62 Stat. 236, consolidation plan? 152.307 How and when will the
sec. 2, 40 Stat. 606, 68 Stat. 358, 69 Stat. 666: 152.106 How may the tribe use the conveyance instrument be executed?
25 U.S.C. 378, 379, 405, 404, 372, 373, 483, proceeds of a sale or exchange?
Subpart E—Consolidation by Sale of Highly
355, unless otherwise noted.
Exchanges Without a Land Consolidation Fractionated Parcels
4a. The cross references for part 152 Plan 152.401 What terms do I need to know?
are revised to read as follows: 152.107 In the absence of an approved land 152.402 What lands are subject to
Cross-references: For further regulations consolidation plan, how does a tribe get consolidation by sale?
pertaining to the sale of irrigable lands, see approval for an exchange of tribal land? 152.403 How do I apply to consolidate a
parts 160, and 159 and § 134.4 of this 152.108 What criteria will the Secretary use parcel by sale?
chapter. For Indian money regulations, see to determine whether to approve an 152.404 What must the Secretary do before
parts 115, 111, 116, and 112 of this chapter. exchange? acting on an application for
For regulations pertaining to the consolidation by sale?
Subpart C—Negotiated Sales, Gifts, and
determination of heirs and approval of wills, 152.405 What consents are necessary for a
Exchanges of Individually Owned Lands
see part 15 and subpart G of part 11 of this consolidation by sale?
chapter. 152.201 What lands are covered by this 152.406 How will the Secretary notify
subpart? owners of the consolidation proceeding?
5. Revise the heading of part 152 to 152.202 What transactions are covered by 152.407 What action does the Secretary take
read as set forth above. this subpart? on comments or objections?
6. Remove §§ 152.1 through 152.3, 152.203 Who may convey an interest in 152.408 What happens if the Secretary
including the center heading preceding trust or restricted land? orders a new appraisal?
§ 152.3. 152.204 Who can receive an interest in trust 152.409 How can an owner appeal a
7. Remove §§ 152.17 through 152.35, or restricted lands? consolidation by sale proceeding?
including the center headings preceding 152.205 What restrictions apply to a 152.410 How will the Secretary notify
§§ 152.17, 152.33, and 152.34. conveyance of trust or restricted land to owners of a sale after appeals have been
fee status? decided?
8. Redesignate §§ 152.4 through 152.8
152.206 How does an owner initiate a 152.411 Who may participate in an auction
as §§ 152.701 through 152.705. negotiated sale, gift, or exchange? or sealed bid sale?
9. Redesignate §§ 152.9 through 152.207 Does a conveyance of a fractional 152.412 How does a tribe reserve its right
152.16 as §§ 152.801 through 152.808. interest require the consent of the co- to match the highest bid?
owner(s)? 152.413 How will the Secretary determine
Subpart H—Patents in Fee, Certificates 152.208 Is tribal consent required to convey the successful bidder?
of Competency, and Orders Removing an interest in trust or restricted land 152.414 What happens if no bid matches
Restrictions located within the tribe’s jurisdiction? the fair market value?
152.209 Is payment required for a 152.415 When must the highest bidder pay
10. Designate §§ 152.701 through negotiated sale, exchange, or gift? for the purchase?
152.705 as subpart H and add a subpart 152.210 When must fair market value be 152.416 How will proceeds be distributed?
heading to read as set forth above. determined and provided to the grantor? 152.417 Is Federal financial assistance
152.211 When must the Secretary receive available to support a bidder’s purchase?
Subpart I—Special Provisions payment for the conveyance of the land? 152.418 What title is acquired?
Applicable to the Osage and Five 152.212 How does the Secretary decide
whether to approve a negotiated sale, Subpart F—Partitions in Kind
Civilized Tribes
gift, or exchange? 152.501 What lands are covered by this
11. Designate §§ 152.705 and 152.801 152.213 How does the negotiated sale or subpart?
as subpart I and add a subpart heading exchange occur? 152.502 When does this subpart apply?
to read as set forth above. 152.214 When is a negotiated sale, gift or 152.503 How can an owner initiate a
12. Add subparts A through G to read exchange effective? partition action?
as set forth below. 152.215 How does an Indian Land 152.504 How will you notify the applicant’s
Consolidation Program lien attach? co-owners of an application for
Subpart A—General Provisions 152.216 How is an Indian Land partition?
Consolidation Program lien removed? 152.505 How and when will you review an
Sec. 152.217 When can a co-owner acquire an application?
152.1 What does this part do? interest previously acquired on behalf of 152.506 When will you execute the
152.2 What terms do I need to know? a tribe? conveyance instruments?
Subpart G—Mortgages and Deeds of Trust Owner(s) means, except in subpart D (b) The tribe that exercises
152.601 What does this subpart do? of this part, the tribe or individual jurisdiction over the parcel;
152.602 How do owners submit an person or persons who are the (c) A person eligible for membership
application for approval of a mortgage or beneficiaries of trust land or who hold in that tribe;
deed of trust? title to restricted land. In subpart D of (d) Any person or entity that is
152.603 How will the Secretary review the this part, owner also includes leasing, using, consolidating, or
application? individuals and entities that hold title applying to lease, use or consolidate
152.604 How may the mortgage or deed of
in fee status. trust or restricted lands on that
trust be enforced?
Restricted land means land or an reservation; or
152.605 Does the land remain in trust as a
result of foreclosure or sale? interest therein the title to which is held (e) Anyone authorized by an
152.606 How does the Paperwork by an Indian or a tribe and which can individual owner to receive the
Reduction Act affect this part? only be alienated or encumbered by the information.
owner with the approval of the
Subpart A—General Provisions Secretary because of limitations in the § 152.5 Which subparts do not apply to
conveyance instrument under federal Alaska?
§ 152.1 What does this part do? law. (a) Subparts B and D of this part do
This part explains the policy and Secretary/we/our/us means the not apply to Alaska.
procedures for conveying trust or Secretary of the Interior or an (b) In subparts C and E of this part,
restricted Indian land or removing authorized representative. the term ‘‘tribe’’ includes the Metlakatla
Indian land from trust or restricted Tribal land means tribal trust land Indian Community but does not include
status. and other tribally owned land that is any other Alaska tribe.
subject to any general restrictions on (c) Subparts F, G and H of this part
§ 152.2 What terms do I need to know?
alienation imposed by federal law. apply in their entirety to individually
As used in this part: Tribe means any Indian tribe, nation,
Fair market value means the value of owned restricted lands in Alaska.
band, pueblo, town, community,
an interest in land determined in rancheria, colony, or other group of Subpart B—Sales and Exchanges of
accordance with the Uniform Standards Indians, which is recognized by the Tribal Trust or Restricted Land
of Professional Appraisal Practice Secretary as eligible for the special
(USPAP), or an alternative system we programs and services provided by the § 152.101 What transactions are covered
may utilize for establishing fair market Bureau of Indian Affairs, and listed in by this subpart?
value. the Federal Register under the Act of Except as provided in this subpart or
Family farm means land used for November 2, 1994 (108 Stat. 4792; 25 as authorized by a specific act of
agricultural production owned and U.S.C. 479a–1). Congress, tribal land may not be sold,
operated by the owner(s) and/or his Trust land means land or an interest exchanged, or otherwise conveyed. This
immediate family. The family farm can therein that the United States holds in subpart authorizes us to approve:
include a house or residence. trust for the benefit of an Indian or a (a) Negotiated sales and exchanges of
Fee land means land or an interest in tribe. tribal land, where made under a land
land that is not trust or restricted. You/I means the reader of this consolidation plan approved by us
Fee status means the interest in a regulation. under this subpart; and
parcel of land is held by the owner (b) Exchanges of tribal land, when the
without restrictions on alienation or § 152.3 Will the Secretary provide
ownership information? fair market value of the land being
encumbrance and not in trust by the received in exchange is substantially
United States for that owner. Yes. We will provide ownership
equal to or greater than the fair market
Fractional interest means an information under part 150 of this
value of the tribal land being conveyed.
undivided interest in Indian land chapter to an individual or tribe
owned in common by Indian or tribal interested in conveying or acquiring by Sales and Exchanges Under a Land
landowners and/or fee owners. negotiated sale, gift, or exchange. We Consolidation Plan
Indian means any person who: will, through the Land and Title
(1) Is a member of any federally Records Office and the local BIA § 152.102 What must a land consolidation
recognized tribe or, for purposes of land plan include?
Agency and local Trust Officer, provide
transactions in Alaska, can demonstrate the names and mailing addresses of the A land consolidation plan must
Alaska Native ancestry; owners of a parcel of trust or restricted include:
(2) Is eligible to become a member of lands, the location of the parcel, and the (a) A description and map of the
any federally recognized tribe; percentage of undivided interest owned general area within which are located
(3) Is a descendent of a member and by each owner. A request for ownership the tribal lands and interests to be
said descendent was, on June 1, 1934, information must be in writing and conveyed, and the lands and interests to
physically residing on a federally must include the legal description or be acquired through exchange or
recognized Indian reservation; other identifier of the parcel and how purchased with the sale proceeds;
(4) Possesses a total of one-half or the applicant meets the requirements of (b) An explanation of how the plan
more degree Indian blood; § 152.4. will facilitate the elimination of
(5) Is an owner (as of October 27, fractionation and/or the consolidation of
2004) of a trust or restricted interest in § 152.4 To whom will the Secretary provide tribal landholdings; and
land; or ownership information? (c) An appropriate supporting tribal
(6) With respect to land in the State Anyone may receive information resolution.
of California, is an owner of a trust or under part 150 of this chapter. We will

restricted interest in land in California. provide ownership information to: § 152.103 Are there any restrictions on a
Land consolidation plan means a (a) Owners, including owners holding land consolidation plan?
tribal plan for eliminating fractionation an interest in fee status, of a parcel of Yes. A land consolidation plan may
and/or consolidating tribal trust or restricted land on the same not authorize land sales or other types
landholdings. reservation; of land transactions that are prohibited
by the tribe’s constitution or other identifies the lands involved and (1) Any individual owner 18 years of
governing document. requests our approval for the exchange. age or older may convey his or her
(b) Upon receiving an appropriate interest;
§ 152.104 How does the Secretary approve authorizing resolution requesting (2) Guardians, conservators, or other
a land consolidation plan?
Secretarial approval, we will: fiduciaries who are appointed by a court
We may approve the land (1) Prepare a conveyance instrument of competent jurisdiction and who have
consolidation plan if it is consistent or approve a conveyance instrument been granted the authority to convey,
with the requirements of this subpart. prepared by a tribe; and may convey trust or restricted land
We will take action on the tribe’s land (2) Determine fair market value of the belonging to their Indian wards who are
consolidation plan (or amended plan) tribal land to be conveyed and of the minors, non compos mentis, or
within 120 working days of our land to be acquired in the exchange. otherwise under legal disability; and
receiving a complete plan and (3) Parents may convey their
supporting tribal resolution. § 152.108 What criteria will the Secretary children’s fractional interests in trust or
use to determine whether to approve an
§ 152.105 How does a tribe receive restricted land only for the purposes of
exchange?
approval for a sale or exchange under a consolidation.
We will approve the exchange of land (b) Except where otherwise
land consolidation plan?
in the absence of an approved land prohibited, an adult or legal entity who
(a) The tribe must request Secretarial consolidation plan only if:
approval for each sale or exchange made has been given a written power of
(a) The land the tribe is acquiring has attorney may convey trust or restricted
under an approved land consolidation a fair market value equal to or greater
plan by submitting a tribal resolution land. The power of attorney must:
than that of the land being conveyed, (1) Meet all of the formal
that identifies the land(s) involved and and
requests Secretarial approval for the sale requirements of any applicable tribal or
(b) If the land to be acquired is in fee state law;
or exchange. status, the acquisition meets the
(b) Upon receiving an appropriate (2) Identify the attorney-in-fact and
requirements set forth in part 151 of this the land to be conveyed; and
authorizing resolution requesting chapter. (3) Describe the scope of the power
approval for a sale or exchange, we will:
(1) Prepare a conveyance instrument; granted and any limits thereon.
Subpart C—Negotiated Sales, Gifts,
and and Exchanges of Individually Owned § 152.204 Who can receive an interest in
(2) Determine fair market value. Lands trust or restricted lands?
(c) We will approve the sale or (a) Subject to the conditions in this
exchange of land if: § 152.201 What lands are covered by this subpart, trust or restricted land may be
(1) The land being sold or exchanged subpart?
conveyed in trust status to:
is identified for conveyance in an This subpart applies to whole or (1) The tribe having jurisdiction over
approved land consolidation plan; and fractional trust and restricted interests the parcel;
(2) The tribe receives payment equal in land owned by an Indian. The land (2) Any Indian, as defined in § 152.1;
to at least 90 percent of the fair market can be located on or off a reservation. or
value of the land being sold or This subpart also applies to severed (3) Any trust or restricted co-owner,
exchanged. Such payment may include mineral interests. as identified in our records as of the
any combination of cash or land equal date on which the grantor’s application
to or greater than the requisite § 152.202 What transactions are covered
by this subpart?
to convey is filed.
percentage. (b) Subject to the restriction in
(a) Transactions covered by this part § 152.205, any individual or entity may
§ 152.106 How may the tribe use the include:
proceeds of a sale or exchange? receive the interest in fee status. In
(1) Negotiated sales, gifts, and addition, any individual or entity not
(a) Any proceeds from any sale or exchanges, whereby a conveyance
exchange made under an approved eligible under paragraph (a) of this
instrument is executed by or on behalf section to receive an interest in trust
tribal land consolidation plan must be: of the trust or restricted owners, subject
(1) Deposited in a segregated, interest- status must receive the interest in fee
to Secretarial approval; and status.
bearing trust account established and (2) Partitions accomplished by
maintained by the Secretary; and exchanges of deeds among all of the § 152.205 What restrictions apply to a
(2) Used only for the purchase of owners, rather than by application to conveyance of trust or restricted land to fee
other lands, as identified in the land the Secretary under subpart F of this status?
consolidation plan. part. An owner of trust or restricted land
(b) Any fee land purchased with the (b) The following transactions are not who applies to convey that interest to
proceeds derived from any sale or covered by this subpart: fee status must notify the tribe with
exchange made under an approved land (1) Conveyances made by the jurisdiction over the parcel and provide
consolidation plan may be placed in Secretary without the consent of all of us with a copy of the notification.
trust status upon satisfying any the owners; and (a) Except as provided in paragraph
applicable requirements in part 151 of (2) Conveyances or purchases made (b) of this section, when the tribe with
this chapter. during a probate of trust or restricted jurisdiction over the parcel receives
Exchanges Without a Land land. notice, the tribe:
Consolidation Plan (1) Has a maximum of 30 days to
§ 152.203 Who may convey an interest in notify us of its intent to purchase; and
§ 152.107 In the absence of an approved trust or restricted land? (2) Has the opportunity within 30
land consolidation plan, how does a tribe (a) Unless otherwise prohibited by days after its statement of intent to:
get approval for an exchange of tribal land? law, the following individuals or (i) If the conveyance is a sale, pay the
(a) To obtain approval for an exchange entities may convey an interest in trust purchase price;
of tribal land, a tribe must submit an or restricted land with the approval of (ii) If the conveyance is a gift, pay the
appropriate authorizing resolution that the Secretary: fair market value; or
(iii) If the conveyance is an exchange, § 152.209 Is payment required for a not less than 10 percent of the purchase
pay the total payment received by the negotiated sale, exchange, or gift? price in advance and terms for the
grantor. No. A conveyance may be made to payment of the remaining amount in
(b) The tribe may not exercise its any individual or entity at any installments plus interest acceptable to
rights under paragraph (a) of this negotiated price or for no payment. Our the Secretary and the Indian owner; and
section, if the parcel or interest to be approval of the conveyance does not (6) Provisions for default, including a
conveyed is part of a family farm and is constitute a breach of trust if either: provision that if the purchaser defaults
being conveyed to a member of the (1) We have provided to the grantor in the first or subsequent payments, all
grantor’s family who is residing on, or an estimate of value; or payments, including interest, previously
working, the farm. For purposes of this (2) The grantor waives the right to made will be forfeited to the Indian
section, ‘‘member of the grantor’s information about fair market value in owner(s).
family’’ means: accordance with § 152.210. (c) With a deferred payment under
(1) A lineal descendant of the grantor; paragraphs (a) and (b) of this section, we
(2) A lineal descendant of the § 152.210 When must fair market value be will hold the deed executed by the
grandparents of the grantor; or determined and provided to the grantor?
grantor(s). We will approve and deliver
(3) The spouse of the grantor or of a (a) Except as provided in paragraph the deed only upon full compliance
person described in paragraphs (b)(1) or (b) of this section, the grantor must be with the terms of sale.
(b)(2) of this section. notified of the fair market value of his
(c) Where a conveyance is made to a or interest. § 152.212 How does the Secretary decide
family member under paragraph (b) of (b) The grantor may waive the right to whether to approve a negotiated sale, gift,
this section, the deed must include a be provided with fair market value or exchange?
statement that the tribe will have the information on the interest being We will review the application and
rights identified in paragraph (a) of this conveyed only if: may approve a negotiated sale, gift, or
section if the grantee attempts to convey (1) The grantee acquires the interest in exchange if:
to a non-family member, except if the trust or restricted status; and (a) It does not increase the number of
conveyance is a mortgage or deed of (2) One of the following criteria is fractional interests;
trust or the tribe provides a written met: (b) There is no evidence of fraud or
waiver of its right to purchase. (i) The grantee is an Indian and is the undue influence, or criminal
grantor’s spouse, lineal ancestor, lineal inducement;
§ 152.206 How does an owner initiate a (c) There is no reason to believe the
negotiated sale, gift, or exchange? descendant, sibling, or blood relative; or
(ii) The interest being conveyed is a grantor lacks the legal capacity to
To initiate a negotiated sale, gift, or convey; and
exchange, the owner must provide us fractional interest of 5 percent or less, as
reflected in our records as of the date on (d) The parcels conveyed and
with a written request that includes the acquired will have access to the parcel
following: which the application is filed, and the
grantee is an Indian co-owner or the as required by law.
(a) A description of the land;
(b) The proposed grantee and his or tribe having jurisdiction over the parcel. § 152.213 How does the negotiated sale or
her tribal affiliation, if any; (c) If the interest has been conveyed exchange occur?
(c) Any limitations or encumbrances under paragraph (b) of this section, the (a) The purchaser or grantee must
known by the grantor on his or her right interest may not be conveyed out of deposit with us any proceeds from a
to convey the land; trust or restricted status for 5 years. negotiated sale or exchange and we
(d) Any intention to reserve rights to shall deposit the proceeds into the
the land; § 152.211 When must the Secretary
receive payment for the conveyance of the grantor’s Individual Indian Money
(e) Whether the owner waives his or account upon our approval.
land?
her right to receive information (b) The grantor will execute the
regarding fair market value for this (a) We must receive any payment, on
behalf of the grantor, no later than when conveyance document, which must:
transaction under § 152.210(b); and (1) Include the date of execution and
(f) Terms of the sale, gift, or exchange. the grantor executes the deed, unless:
(1) The grantor agrees to a deferred the land description; and
§ 152.207 Does a conveyance of a (2) Comply with any boundary
payment;
fractional interest require the consent of the standards established by the Department
(2) The purchaser is the Federal
co-owner(s)? of the Interior, if the parcel is conveyed
Government; or
No. An Indian may convey a in trust.
(3) The payment is escrowed.
fractional interest without the consent (c) We must promptly record the
(b) To proceed by a deferred payment
of co-owner(s). conveyance document at the Land Title
under paragraph (a) of this section, we
Records Office.
§ 152.208 Is tribal consent required to may develop a memorandum of sale, or
convey an interest in trust or restricted land approve a memorandum of sale § 152.214 When is a negotiated sale, gift,
located within the tribe’s jurisdiction? developed by the parties to the sale, that or exchange effective?
(a) If the grantor owns 100 percent of includes the following terms: (a) A negotiated sale, gift, or exchange
the trust and restricted interests in a (1) A contract for delivery of title is effective when we approve the deed.
parcel, tribal consent for conveyance of upon payment in full of the amount of (b) If we approve the deed after the
the interest is not required. the agreed payment; grantor dies, the sale, gift, or exchange
(b) If the grantor owns less than 100 (2) How revenues will be distributed is effective on the date the grantor
percent of the trust and restricted during the period of the deferred signed the deed.
interests in the parcel, tribal consent to payment; (c) If land is purchased for the tribe
convey the interest is required only if: (3) Late fees and penalties for failure under the Indian Land Consolidation
(1) The tribe has jurisdiction over the to comply with the terms of the sale; Program, title will vest in the tribe on
parcel; and (4) Contract adjustments; the date the conveyance is approved,
(2) Applicable tribal law requires (5) If the conveyance is to fee status, subject to the type of lien described in
approval before a conveyance can occur. terms requiring that the purchaser pay 25 U.S.C. 2213(b).
§ 152.215 How does an Indian Land initial acquisition in a given parcel on non-consenting owners, including those
Consolidation Program lien attach? behalf of a tribe under the Indian Land whose interests are held in fee status, to
A lien in the amount of the purchase Consolidation Program. In addition, we a tribe, if the tribe:
price will attach to the income derived will provide notice of subsequent (1) Owns at least 50 percent of the
from any interest purchased for a tribe acquisition to the co-owner so long as interests in the parcel; or
under the Indian Land Consolidation he or she has previously purchased an (2) Has obtained the consents of the
Program, until the lien has been interest offered in the same parcel. owners of at least 50 percent of
satisfied or we remove it. Pending such ownership interests.
satisfaction or removal, all transaction § 152.218 What if there are liens or other (b) The interests of the non-
encumbrances on the lands to be
documents entered into or approved conveyed?
consenting owners may include the
after the date of attachment must interests of any undetermined heirs or
provide for the payment of income (a) If there are encumbrances that may devisees of trust or restricted interests
directly to us, for deposit in the transfer with the land, then no further and the interests of any owners whose
Acquisition Fund for the Indian Land action will be taken. whereabouts are unknown.
Consolidation Program. (b) All financial liens, including (c) An individual owner in authorized
collection of construction charges or possession of the entire parcel may
§ 152.216 How is an Indian Land other restrictions, must be cleared preempt the tribe’s application and
Consolidation Program lien removed? before conveyance. succeed to the tribe’s right to purchase,
(a) In consultation with a tribe, we under certain conditions as described in
§ 152.219 How does a transaction affect
may remove a lien on income derived collection of construction costs for § 152.305.
from an acquired interest. irrigation projects? (d) Our authority to approve and
(1) The removal may be based on implement a parcel purchase under this
(a) If the land will remain in trust or
income derived from any interest section by executing the necessary
restricted status following the sale, gift
conveyed to the tribe under the Indian conveyance instrument is not affected or
or exchange, then collection of all
Land Consolidation Program. diminished by the existence of a tribal
construction costs within Indian
(2) The total of liens that we remove land consolidation plan approved under
irrigation projects is deferred as long it
in a year may not exceed the total subpart B of this part.
remains in trust or restricted status.
income deposited in the Acquisition
However, the following conditions § 152.303 How does a tribe apply for a
Fund for the tribe during that period.
apply: parcel purchase?
(b) We may remove at any time a lien
(1) At the time of sale, we will deduct
on income derived from an acquired (a) A tribe may apply for a parcel
delinquent operation and maintenance
interest if we make a finding that: purchase when the tribe has either:
charges from the proceeds of the sale
(1) The costs of administering the (1) Acquired at least 50 percent of the
unless the seller makes acceptable
interest will exceed the projected interests in a parcel; or
arrangements to provide for their
income to be derived therefrom; or (2) Obtained the consent of the
payment before approval of the sale; and
(2) The amount secured by the lien owners of at least 50 percent of such
(2) We will insert a lien clause
will not be recovered within a interests, including interests already
covering all unpaid irrigation
reasonable period of time. owned by the tribe.
construction costs, past and future, in
(b) An application for parcel purchase
§ 152.217 When can a co-owner acquire an the instrument of conveyance issued to
must include:
interest previously acquired on behalf of a purchasers of restricted or trust lands
(1) An appraisal prepared in
tribe? that are under an Indian irrigation
accordance with Uniform Standards for
This section applies when a fractional project.
Professional Appraisal Practice that
interest has been conveyed to a tribe (b) If the land is conveyed in fee
establishes the fair market value of the
under the Indian Land Consolidation status, then the person acquiring the
parcel as of the date the application is
Program but remains subject to an land must enter into an agreement to
filed;
Indian Land Consolidation Program pay:
(2) A certified title report or consent
lien. (1) The pro rata share of the
forms from the owners, reflecting that
(a) Any trust or restricted co-owner of construction of the project chargeable to
the tribe has met the requirements of
the parcel has an option to purchase the the land;
(2) All construction costs that accrue paragraph (a) of this section; and
interest upon the payment or pledge to (3) A deposit of the purchase funds
us of the full amount paid for that in the future; and
(3) All future charges assessable to the needed to compensate the owners of all
interest under the following conditions: of the non-consenting and non-tribal
(1) The co-owner must purchase all of land which are based on the annual cost
of operation and maintenance of the consenting interests in the parcel, based
the acquired interests in the parcel on the tribe’s appraisal.
which are subject to a lien; irrigation system.
(c) This paragraph applies when a
(2) The co-owner may not remove any tribe has acquired at least 50 percent of
interest acquired from trust or restricted Subpart D—Tribal Parcel Purchase
the interests in a parcel, but is unable
status except in carrying out the § 152.301 What lands are covered by this to furnish the deposit required by
foreclosure of an approved mortgage in subpart? paragraph (b)(3) of this section. Under
accordance with subpart G of this part; This subpart applies to all parcels of certain circumstances, we may provide
and trust and restricted land, including the funds needed to complete the parcel
(3) The option to purchase will not be parcels in which fractional interests are purchase.
available if the tribe already owns any held in fee status.

interest in the parcel that is not subject § 152.304 How and when will owners be
to the lien, unless the tribe consents. § 152.302 What transactions are covered notified of an application for tribal parcel
(b) To facilitate exercise of the by this subpart? purchase?
purchase option, a co-owner may (a) This subpart authorizes us to (a) Upon receiving an application for
request that we provide notice of any convey the fractional interests of all parcel purchase under § 152.303, we
must notify any non-consenting owners conveyed without further owner Subpart E—Consolidation by Sale of
of the tribe’s intent to purchase their consent, based on tribe’s original Highly Fractionated Parcels
interests under this subpart, even if they application; and
have previously refused to consent. (4) Any tribally owned interests in the § 152.401 What terms do I need to know?
(1) The notice must provide the non- parcel will be conveyed only with the As used in this subpart:
consenting owners with copies of the consent of the tribe. AIPRA means the American Indian
appraisal and advise that the tribe has Probate Reform Act of 2004.
offered to purchase their interests at fair § 152.306 How and when will the Secretary Consolidation by sale means a
market value or better, as reflected by review an application for parcel purchase? procedure by which the ownership of
the tribe’s appraisal. (a) We will review the appraisal and interests in a parcel of highly
(2) If the fair market value is adjusted any objections to it after: fractionated land is consolidated by one
upon review of the appraisal under (1) The notice period required by or more of the eligible bidders’ asking
§ 152.306, we must again provide notice § 152.304(a) ends; and the Secretary to sell the parcel.
of the offer to purchase under paragraph (2) We determine whether the Bona fide means that an owner of an
(a) of this section. application is to be processed on behalf interest in the subject parcel has, in the
(b) We will conduct a reasonable of the initiating tribe or any individual case of a residence, maintained it
search for any owners whose owner exercising an option to purchase. continuously for the preceding 3 years
whereabouts are unknown. We will give with permission or, in the case of a
(b) If we do not approve the appraisal,
notice to owners whose whereabouts are farm, ranch or other business, operated
we will establish fair market value and
unknown by publication in at least one it on the parcel for the preceding 3
notify the tribe what additional funds
newspaper of general circulation in the years, in each case under:
are needed to compensate the (1) A lease or other agreement that has
area of the parcel at least 90 days before
outstanding owners at fair market value. been approved by the Secretary;
closing of the purchase.
(c) Any notice given under this If we approve the appraisal, we will (2) An owner management lease
section must: notify any objecting owner of the right under AIPRA; or
(1) Instruct the owners to submit to appeal under Part 2 of this title, (3) Other documented permission.
objections to the appraisal within 90 before taking any further action on the Eligible bidder means:
days from the date of the notice; and application. (1) The tribe with jurisdiction over the
(2) Advise that any owner who has (c) If it appears that all of the interests parcel subject to consolidation by sale;
been in authorized possession of the in the parcel can be purchased by (2) Any person who is a member or
entire parcel for at least 3 years before agreement among the owners, we must eligible to be a member of the tribe with
the tribe’s application can purchase the withhold action on the application and jurisdiction over the parcel;
parcel after notifying us of the intent to assist in preparing the conveyance (3) Any person who is a member or
purchase as required by § 152.305. documents needed to affect the parcel eligible to be a member of any other
purchase by negotiated conveyance. If it tribe if such person already owns an
§ 152.305 Can an individual owner appears that some of the interests undivided interest in the parcel at the
preempt and succeed a tribe’s right to cannot be purchased by negotiation, we time of the consolidation by sale; or
purchase? (4) Any lineal descendant of the
must issue a formal decision on the
(a) An individual owner in actual use application and execute the conveyance original allottee of the parcel who is a
and possession of the entire parcel for instrument needed to affect the parcel member or eligible to be a member of a
3 years before the tribe’s purchase purchase. tribe or, with respect to a parcel located
application may preempt and succeed to in California that is not within a tribe’s
the tribe’s right to purchase the interests § 152.307 How and when will the reservation or not otherwise subject to a
of other individual owners. To do this, conveyance instrument be executed? tribe’s jurisdiction, who is a member or
he or she must submit to us a notice of (a) No sooner than 30 days after the eligible to be a member of a tribe or who
intent to purchase within 90 days of exhaustion of any appellant’s owns a trust or restricted interest in the
receiving the notice described in administrative remedies, we must issue parcel.
§ 152.304. The individual owner’s a conveyance order transferring the Highly fractionated land means trust
notice of intent to purchase must remaining or non-purchaser’s interests or restricted land that has either:
include: in the parcel, subject to any existing (1) From 50 to 99 co-owners of
(1) Proof of authorized possession liens and encumbrances. The order may undivided trust or restricted interests,
during the requisite 3-year period; and include any interests owned by the tribe with no single co-owner who owns an
(2) A deposit of the purchase funds if: undivided trust or restricted interest in
needed to compensate the owners of the (1) A qualifying owner has exercised the parcel that is more than 10 percent
remaining or non-purchaser’s interests, his or her option to purchase; and of the entire undivided ownership of the
based on the tribe’s appraisal. parcel; or
(b) We will review the individual (2) The tribe has consented to convey
its interest by an appropriate (2) 100 or more co-owners of
owner’s notice of intent and determine undivided trust or restricted interests in
if the individual owner has been in authorizing resolution.
(b) When we issue the conveyance the parcel.
authorized possession of the entire
parcel for the requisite 3-year period. order, we must: § 152.402 What lands are subject to
(1) If the individual owner is found to (1) Notify all owners whose interests consolidation by sale?
be qualified, we will refund the deposit have been conveyed as required by (a) Consolidation by sale applies to
made by the tribe and process the § 152.304; and trust and restricted lands, on or off the
application of the owner exercising the (2) Record the conveyance order in reservation, that are highly fractionated
option to purchase. the appropriate Land Titles and Records parcels.
(2) We must then advise the Office as required by part 150 of this (b) Consolidation by sale will include:
individual owner that: chapter, and in the appropriate county (1) All of the interests in such a
(3) All of the outstanding individually office if interests in fee status are parcel, including interests held in fee
owned interests in the parcel will be involved. status; and
(2) Surface and subsurface estates. parcel is worth more than $1,500, we (b) The notice must be mailed by
(c) If the surface and subsurface will seek additional consents. We will certified mail, restricted delivery, to all
estates have been severed, only the work with the applicant to seek the owners of interests in the parcel at
surface estate can be consolidated by consent of owner(s) of at least 50 addresses found in our current records.
sale under this subpart. Subsurface percent of the undivided ownership (c) If the notice is returned
estates that have been severed cannot be interest in the parcel. undelivered, we will attempt to obtain
consolidated by sale under this subpart. (1) Parents of minor owners and legal and use a current address for such
guardians of incompetent owners are owner by a reasonable search of records
§ 152.403 How do I apply to consolidate a considered the owners of their minor
parcel by sale? of:
children’s or ward’s interests. (1) Departmental records;
To apply for consolidating a parcel (2) The calculation of the undivided (2) Local, state, and Federal agencies;
you must: interest will not include the interest of (3) Land records and phonebooks; and
(a) Be an eligible bidder; and the owner requesting the consolidation.
(b) Submit a completed consolidation (4) The tribe with jurisdiction over the
(c) If necessary to obtain consent of at parcel or the tribe of which the noticed
by sale application form. least 50 percent of interests, and after owner is a member.
§ 152.404 What must the Secretary do we have completed a search consistent (d) If we are unable to find any owner,
before acting on an application for with § 152.409(b) and (c), we may then we will publish the notice:
consolidation by sale? consent on behalf of: (1) At least two times in a newspaper
(a) Upon receiving an application, we (1) Heirs of trust or restricted interests of general circulation in the county or
will decide: who cannot be determined; counties in which the parcel is located
(1) Whether the parcel is highly (2) Minor or incompetent owners who or, if the tribe with jurisdiction over the
fractionated; have no parent or legal guardian; or parcel publishes a monthly tribal
(2) What owner consents are needed (3) Missing owners.
newspaper or newsletter, one time in
and whether they have been obtained; § 152.406 How will the Secretary notify the tribal newspaper or newsletter and
(3) Costs of providing the notice; owners of the consolidation proceeding? one time in the newspaper of general
(4) If there are owners of interests in
(a) Once we determine that a circulation;
the parcel who cannot be identified or
consolidation by sale may proceed, we (2) By posting the notice
located, the procedures for locating
will notify all owners of undivided conspicuously in the headquarters or
owners whose whereabouts are
interests in the parcel and the tribe with administration building or other tribal
unknown have been followed; and
(5) The fair market value of the jurisdiction over the parcel. The notice building of the tribe with jurisdiction
property. will include: over the parcel in the most appropriate
(b) If we determine that a (1) A statement that the proceeding to location for such a posting; and
consolidation for sale may proceed, then consolidate the parcel of land by sale (3) By publishing notice in any other
we will promptly notify the applicant in has been started; place or by other means we deem
writing. The notice will include: (2) The legal description of the parcel; appropriate.
(1) A statement that the application is (3) Each owner’s ownership interest
in the parcel as determined by the BIA § 152.407 What action does the Secretary
complete; take on comments or objections?
(2) The estimated costs to the based on current records;
applicant for providing notice to the (4) Fair market value and instructions (a) We will consider all written
owners of the parcel, including the costs for making a written request for a copy comments and objections received
of mailing and publishing the notice, of the appraisal; within 90 days of the notice. We may:
(5) A statement that the owner may (1) Accept the appraisal if consistent
and a statement that the applicant must
submit written comments on or with the Uniform Standards for
either pay the costs or furnish a
objections to the proposed consolidation Professional Appraisal Practice;
sufficient bond to cover such costs;
(3) The date by which payment must by sale or to the appraisal within 90 (2) Order a new appraisal; or
be made to confirm intent to proceed days of receiving the notice; (3) Terminate the sale and notify by
with the consolidation by sale (6) A statement that the owner must, certified mail, restricted delivery, the
application; and within the 90-day deadline, comment applicant and all currently known
(4) Any other information required to on or object in writing to the owners of interests in the parcel.
process the application. consolidation proceeding or the (b) If we receive no comments or
appraisal in order to receive notice of objections to the consolidation by sale
§ 152.405 What consents are necessary for approval of the appraisal and right to within 90 days of the notice, we will
a consolidation by sale? appeal; accept the appraisal and proceed with
(a) For all parcels, we will work with (7) The address for requesting copies the sale.
the applicant to obtain consents of the of the appraisal and the address for
following owners of interests in the submitting comments or objections to § 152.408 What happens if the Secretary
orders a new appraisal?
parcel to be consolidated by sale: the appraisal or to the consolidation sale
(1) Consent of the tribe with proceeding; (a) If we order a new appraisal, where
jurisdiction over the parcel if the tribe (8) The name and telephone number the appraisal results in a lower
owns an undivided interest in the of the person to contact for information valuation of the land, we will provide
parcel; regarding the proceeding, including the notice of the results of the new appraisal
(2) Consent of each owner who has time and date of auction of the parcel or to all owners of interests in the parcel,
continuously maintained a bona fide for submitting sealed bids; and where the new appraisal results in
residence on the parcel or operated a (9) Notification that the tribe may a value of the land that is equal to or
bona fide farm, ranch, or other business exercise its right to match the highest greater than that of the earlier appraisal,
on the parcel for the 3 years before the bid on the parcel; and we will provide the results of the new
application. (10) Notification that co-owners may appraisal to the tribe with jurisdiction
(b) For a parcel where any individual have a right to purchase the parcel when over the parcel and all persons who
owner’s total undivided interest in the the highest bidder has been determined. submitted written comments on or
objections to the proposed partition or (c) The deciding official decides all (1) If the highest bidder is a member
the appraisal, at addresses found in our issues in an appeal and issues a written of the tribe with jurisdiction over the
current records with a notice including decision. A decision issued by the parcel, then he/she may purchase the
the following information: deciding official is final for the parcel, unless one of the restrictions in
(1) The results of the new appraisal; Department. paragraph (c) of this section applies; and
(2) Notification that the owners can (2) If the highest bidder is a not a
submit written comments on or § 152.410 How will the Secretary notify
member of the tribe with jurisdiction
owners of a sale after appeals have been
objections to the proposed consolidation over the parcel, then the highest bidder
decided?
by sale and/or objections to the may purchase the parcel, unless one of
appraisal within 90 days of receiving After all appeals are final, we will set
the restrictions in paragraph (d) of this
the notice; a time and date for a consolidation sale.
section applies.
(3) The address for requesting copies The sale will be conducted no sooner
(c) A highest bidder who otherwise
of the appraisal and address for than 30 days after we have mailed, via
qualifies under paragraph (b)(1) of this
submitting comments or objections to certified mail, restricted delivery, a
section may not purchase the parcel if
the appraisal and/or consolidation sale notice of the sale to those owners
either of the following conditions
proceeding; and providing comments or objections to the
applies:
(4) The name and telephone number Notice of Appraisal and Sale or those
(1) The owner of the largest interest is
of the person to contact for information person(s) requesting notification of sale
a member of the tribe with jurisdiction
regarding the proceeding, including the and the tribe having jurisdiction over
over the parcel, chooses to purchase the
time and date of auction of the parcel or the parcel. In addition, we will publish
parcel, and meets each of the following
for submitting sealed bids. a notice of sale:
(a) In a newspaper of general requirements:
(b) We will send the notice of the new (i) The owner had submitted a bid on
appraisal by certified mail, restricted circulation in the county or counties in
which the parcel is located or a tribal the parcel at sale at least equaling the
delivery, to the tribe with jurisdiction fair market value;
over the parcel. newspaper;
(b) By posting the notice (ii) At the time immediately before the
(c) If we accept the appraisal, we will sale, the owner’s undivided interest in
send a notice of acceptance to the tribe conspicuously in the tribal headquarters
or administration building; and the parcel was greater than that of any
with jurisdiction over the parcel and to other owner and equal to or greater than
all persons who submitted written (c) In such other locations and
manner as we deem necessary. 20 percent of the entire undivided
comments on or objections to the ownership of the parcel; and
proposed consolidation or appraisal. § 152.411 Who may participate in an (iii) The owner submits to us, within
The notice will include: auction or sealed bid sale? 3 days of the date of auction or date for
(1) Results of the appraisal, which We will conduct the sale either by submitting sealed bids, a written notice
will set the minimum bid for the public auction or sealed bid as of intent to purchase the parcel; or
consolidation by sale; appropriate. (2) If no single owner is identified as
(2) Rights of each interest owner to (a) Only eligible bidders may eligible to buy the parcel under
review a copy of the appraisal; participate in the auction or sealed bid paragraph (c)(1) of this section, and two
(3) A statement that the land will not sale. or more owners who have equal
be sold for less than the appraised (b) To participate in a sealed bid sale, interests, which combined are greater
value; a bidder must submit a deposit of 10 than any other individual interests in
(4) The time and date set for the percent of the full amount of the bid for the parcel and constitute at least 20
auction of the parcel, or for submitting the parcel, including for his own percent of the entire undivided
sealed bids; and ownership interest in the parcel. The
(5) The owner’s right to appeal, to ownership in the parcel, have entered
value of the bidder’s ownership interest into a written agreement that identifies
whom the appeal should be submitted, will be deducted when the final
and the owner’s burden to submit which of these owners has the right of
payment amount is calculated. purchase.
evidence in support of the appeal.
§ 152.412 How does a tribe reserve its (d) A highest bidder who otherwise
§ 152.409 How can an owner appeal a right to match the highest bid? qualifies under paragraph (b)(2) of this
consolidation by sale proceeding? section may not purchase the parcel if
Before receiving the notice of sale
(a) An owner may submit an appeal issued under § 152.415, the tribe must either of the following conditions
within 30 days of receiving the notice of have submitted a copy of the applies:
a new appraisal under § 152.408. The authorizing tribal law or resolution or a (1) The owner of the largest interest in
procedures in part 2 of this chapter do letter of a tribal officer authorized by the parcel at the time of the sale is a
not apply to this process. tribal law, stating the tribe’s intent to member of the tribe with jurisdiction
(b) Upon receiving the appeal, the reserve the right to match. over the parcel and meets each of the
deciding official will refer the appraisal following requirements:
issues for a desk review to an appraiser § 152.413 How will the Secretary determine (i) The owner had submitted a bid on
who was not involved in the original the successful bidder? the parcel at sale at least equaling the
appraisal. The appraiser will provide (a) The parcel will be sold to the fair market value;
review conclusions to the deciding highest bidder unless certain other (ii) At the time immediately before the
official within 60 days of the referral. purchasers listed in paragraph (b) of this sale, the owner’s undivided interest in
After reviewing the appraiser’s review section match the highest bid. The sale the parcel was greater than that of any
conclusions, the deciding official will price must be at least equal to the final other owner and equal to or greater than
decide all appraisal issues in the appeal appraised fair market value. 20 percent of the entire undivided
and also decide issues in the appeal (b) We will determine which entities ownership of the parcel;
regarding the Secretary’s determination have a right to match the highest bid. (iii) The owner submits a written
to allow a consolidation sale of a The right to match depends on the notice of intent to purchase the parcel
particular parcel. following criteria: to us, within 3 days of the date of
auction or the date for submitting sealed may elect to terminate the consolidation the parcel remains in multiple
bids; and proceeding or reschedule the sale (see ownership.
(iv) The owner tenders the amount of § 152.414(b)). (b) This subpart does not authorize us
the highest bid within 30 days of the to take any other action with respect to
date of auction or submission of sealed § 152.416 How will proceeds be land which cannot be partitioned to the
distributed?
bids; or benefit of all of the owners.
(2) No single owner is identified We will distribute the proceeds of sale
of the parcel to the owners of interests § 152.503 How can an owner initiate a
under paragraph (d)(1) of this section,
in the parcel in proportion to the partition action?
then two or more owners who each have
identical interests equal to or greater ownership interest of each owner. We Any owner of a fractional interest may
than 20 percent of the interests in the will hold the following proceeds until apply to us for a partition by submitting
parcel, match the highest bid and have owners and heirs can be determined: a partition plan that contains the
entered into a written agreement that (a) Proceeds attributable to the sale of following information:
interests of owners whose whereabouts (a) Legal descriptions of the parcel to
identifies which of these owners has the
are unknown; and be partitioned and the smaller parcels to
right to match the highest bid.
(e) If no single owner or group of two (b) Proceeds of undetermined heirs, or be created therefrom, with an
or more owners are identified under persons whose ownership interests have accompanying survey if the smaller
paragraphs (d)(1) or (d)(2) of this not been recorded. parcels cannot be described by aliquot
section, and the tribe with jurisdiction parts;
§ 152.417 Is Federal financial assistance (b) Appraisals of the parcel to be
has reserved its right under § 152.412 to available to support a bidder’s purchase? partitioned and the smaller parcels to be
match the bid of the highest bidder, the We may provide grants and low created from the parcel; and
tribe may proceed to exercise this right. interest loans to successful bidders at (c) Identification of ownership of the
It may do so by stating its intention to consolidation sales of parcels, but this parcel to be partitioned and the
match the bid within 6 business days assistance: proposed ownership of the smaller
after the date of auction or for (a) Is limited to 20 percent of the parcels to be created therefrom, with an
submitting sealed bids. appraised value of the parcel sold; and accompanying title report for the whole
§ 152.414 What happens if no bid matches (b) Must be applied only toward the parcel.
the fair market value? purchase price of the parcel sold.
§ 152.504 How will you notify the
(a) If no bid submitted equals or § 152.418 What title is acquired? applicant’s co-owners of an application for
exceeds the final appraised value, we (a) The title is acquired as follows: partition?
may either: (1) In trust, free and clear of any and (a) Upon receiving an application for
(1) Purchase the parcel for its all title or ownership of all persons or partition under § 152.503, we must
appraised fair market value for the tribe; entities whose interest were subject to notify the owners of the parcel to be
or the sale, except the United States; and partitioned and provide them with
(2) Terminate the consolidation by (2) Subject to valid existing rights, copies of the applicant’s partition plan.
sale process. such as mortgages, easements, or rights- We will take the following steps to
(b) We retain the authority to of-way. notify all owners:
reschedule the date, place, and time of (b) We will execute an appropriate (1) We will make a reasonable search
the sale without providing formal prior transfer document effecting the sale and for any owners whose whereabouts are
notice but will seek to notify interested recorded in the LTRO. unknown;
parties. The sale will be rescheduled as (2) After this search, we will send a
promptly as possible, but no later than Subpart F—Partitions in Kind written notice of the application to all
15 days from the date of the original owners whose whereabouts we could
sale. § 152.501 What lands are covered by this
determine; and
subpart?
§ 152.415 When must the highest bidder
(3) To notify owners we could not
This subpart applies to any parcel of locate, we will publish a notice in
pay for the purchase? trust or restricted land with more than newspapers of general circulation in the
The highest bidder or the co-owner or one owner, irrespective of the number of area of the parcel to be partitioned.
tribe that we determined had a right to owners in the parcel. This subpart will (b) Our notice will instruct the owners
match or preempt the highest bid must not apply to the subsurface interests in to submit comments or objections or
submit payment within 30 days of the a parcel, where those interests have alternative partition plans to us, within
auction or the date for submitting sealed been severed so as to establish separate 90 days of the date that we mail and
bids. If payment is not tendered in 30 surface and subsurface ownerships. publish the notice.
days, then the following process will (c) We must treat the submission of an
occur: § 152.502 When does this subpart apply?
alternative partition plan as a new
(a) The next successful bidder This subpart applies in cases where application requiring additional notice
identified in § 152.413 will be notified the owners have been unable to and invitations for comment.
and provided an opportunity to tender accomplish a partition in kind by
payment in 30 days; exchange of deeds in accordance with § 152.505 How and when will you review
(b) If there is no entity identified in subpart C of this part. It authorizes us an application?
§ 152.413 that has exercised its right to to partition trust and restricted land (a) At the end of the notice period
match or preempt the highest bid, then with multiple owners into smaller required by § 152.504(c), we must verify
we will notify the next highest bidder parcels in which the interests of the the ownership of the parcel to be
and provide an opportunity to tender owners are unified or consolidated. partitioned, and review the partition
payment in 30 days; (a) If a partition which allocates plans and any comments.
(c) If there are no successful bids separate parcels to each of the owners (1) If it appears that the parcel can be
higher than fair market value, then the is not feasible, we may implement a partitioned by agreement among all the
Secretary may purchase the parcel or partial partition, in which a portion of owners, we must assist in preparing the
conveyance documents needed to effect which fractional interests are held in fee (2) The loan-to-value ratio is
a partition by exchange of interests. status. reasonable, based on the evidence of fair
(2) If it appears that the parcel cannot (a) This subpart explains how we can market value in the application and the
be partitioned by agreement, we must approve mortgages or deeds of trust lender’s valuation;
issue a formal decision on the executed by individual owners in cases (3) The risk of default on the loan is
application(s). where all of the trust or restricted reasonable, based on the evidence of the
(b) In evaluating an application to interests in a parcel are: ability to repay in the application;
partition, we must determine if the (1) Encumbered; and (4) All of the owners of trust and
parcel can be partitioned equitably (2) Subject to foreclosure or sale if restricted interests in the parcel have
among all of the owners. In making that there is a default. executed the mortgage or deed of trust,
determination, we will consider (b) This subpart does not apply to any and any necessary consents have been
whether: of the following: obtained from other lienholders or
(1) After partition, each owner would (1) Mortgages of fractional interests encumbrancers; and
hold property equal in value to that held held in fee status; (5) The remedies available to the
before partition, in proportion to the (2) Other types of encumbrances that mortgagee or beneficiary in the event of
interests of the other owners; may be executed or approved in order a default on the loan, and any rights or
(2) The smaller parcels created by the to secure a loan, including assignments remedies available to the tribe having
partition would be economically usable, of income derived from trust or jurisdiction over the parcel in the event
based upon characteristics such as size, restricted lands; or of a foreclosure or sale, are clearly
location, access, etc.; (3) Mortgages or deeds of trust of defined in the mortgage, deed of trust,
(3) Any owner has a history of using leasehold or other possessory interests. or other loan documents.
areas within the parcel to be partitioned, (b) If we decide not to approve the
§ 152.602 How do owners submit an mortgage or deed of trust, we will notify
that would justify those areas being
application for approval of a mortgage or the parties of their rights to appeal
equitably partitioned and conveyed to deed of trust?
that owner; and under part 2 of this chapter.
(4) The parcel to be partitioned Only the owner(s) or the proposed (c) If we decide to approve the
contains any sites of particular cultural, mortgagee or beneficiary can submit an mortgage or deed of trust, we must:
historical, or other significance to more application for approval of a mortgage (1) Record the approved document in
than one owner, that would make it or deed of trust. The application must the Land Titles and Records Office in
inequitable to partition those sites and include: accordance with part 150 of this
convey them to a single owner. (a) An executed mortgage or deed of chapter; and
trust to be approved; (2) Request an updated title status
(c) Upon a determination that a parcel
(b) The promissory note defining the report reflecting the recordation.
cannot be partitioned in an equitable (d) A decision to approve a mortgage
manner, we must notify the applicant of amount of the loan to be secured and
other terms; or deed of trust under this subpart is not
the right to appeal under part 2 of this appealable under part 2 of this chapter
chapter. Upon a determination that a (c) Any other documents describing
the remedies available to the secured and is not considered to be a breach of
parcel can be partitioned in an equitable trust.
manner, we must notify any owner that party in the event of a default on the
objected or submitted an alternative loan;
§ 152.604 How may the mortgage or deed
partition plan of his or her right to (d) An appraisal or evaluation of trust be enforced?
appeal under part 2 of this chapter, furnished by the lender or borrower that
(a) If an owner defaults on a loan
before taking any further action on the establishes the fair market value of the
secured by an approved mortgage or
application. parcel as of the date on which the
deed of trust, the encumbered land is
application for loan was filed;
subject to foreclosure or sale in
§ 152.506 When will you execute the (e) The loan application and any other
accordance with the terms of the
conveyance instruments? description of how the loan proceeds
approved document and either:
(a) No sooner than 30 days after will be used; (1) The laws of the tribe having
exhausting any appellant has exhausted (f) Any credit report or credit analysis jurisdiction over the parcel; or
his or her administrative remedies, if required, obtained, or prepared by the (2) If there are no applicable tribal
our determination under § 152.505(c) proposed mortgagee or beneficiary, with laws, the laws of the state in which the
has been affirmed, we must issue a a verification of the borrower’s income land is located.
partition order. The order may include or a description of other means of debt (b) If there is a foreclosure or sale to
reference to any existing liens and coverage; enforce the terms of an approved
encumbrances. (g) Any title reports or title insurance mortgage or deed of trust, the United
(b) Upon issuance of the order we will policies required or obtained by the States:
notify all of the affected owners, in the proposed mortgagee or beneficiary; and (1) Is not a necessary party; and
same manner as described in § 152.504. (h) Any necessary environmental or (2) Is not required to approve any
We must then record the partition order historic preservation documentation. conveyance arising out of the
and any accompanying survey in the proceeding.
§ 152.603 How will the Secretary review
appropriate LTRO, in accordance with the application?
part 150 of this chapter. § 152.605 Does the land remain in trust as
(a) Within 30 days of receiving a a result of foreclosure or sale?
Subpart G—Mortgages and Deeds of complete application for approval of a (a) If the encumbered land is
Trust mortgage or deed of trust, we must purchased by a tribe or Indian as a

determine whether: result of a foreclosure or sale
§ 152.601 What does this subpart do? (1) The land to be encumbered has proceeding, title remains in trust or
This subpart applies to mortgaging of been adequately described and the loan restricted status.
parcels of trust or restricted land owned documents have been properly (b) If the encumbered land is
by individuals, including parcels in executed; purchased by any other party as a result
of a foreclosure or sale proceeding, title General Forest Regulations; 166, General by probate order. If an interest is created
will be taken consistent with the laws Grazing Regulations; 169, Rights-of-Way over in a child in gestation in a probate
applicable to that foreclosure or sale Indian Lands; 170, Roads of the Bureau of order, that a child will be treated as a
proceeding. Indian Affairs; 212, Leasing of Allotted Lands living person only if the child survives
for Mining; 213, Leasing of Restricted Lands
of Members of the Five Civilized Tribes,
at least 120 hours after its birth.
§ 152.606 How does the Paperwork Future interest means an interest in an
Reduction Act affect this part? Oklahoma, for Mining; 215, Lead and Zinc
Mining Operations and Leases, Quapaw estate with only a future right to
The collections of information possession and enjoyment of the Indian
Agency; 26 CFR 20.2031–7 Gross Estates,
contained in §§ 152.3, 152.105, 152.107, Valuation of Annuities; 43 CFR part 4 land, such as a remainder, executory
152.206, 152.217, 152.219, 152.303, subpart D, Rules Applicable in Indian Affairs interest, or reversionary interest.
152.403, 152.412, 152.503, and 152.602 Hearings and Appeals; 43 CFR part 30, Grantee means a person who receives
have been approved by the Office of Indian Probate Hearings Procedures; for an interest in Indian land.
Management and Budget under 44 trespass see 25 CFR part 166. Grantor means a person who transfers
U.S.C. 3501 et seq. and assigned OMB an interest in Indian land.
§ 179.1 What is the purpose of this part? Holder means a person who owns an
Control Number 1076–xxxx. Response is
required to obtain a benefit. A Federal This part sets forth the authorities, estate or interest in Indian land.
agency may not conduct or sponsor, and policy, and procedures governing the Income means the rents and profits
you are not required to respond to a administration of life estates and from Indian land and the interest on
collection of information unless the present and future interests in Indian invested principal.
form or regulation requesting the land by the Secretary of the Interior. Indian land means all lands held in
information has a currently valid OMB These regulations do not apply to any trust by the United States for individual
Control Number. use rights assigned to tribal members by Indians or tribes; or all lands, titles to
13. Revise part 179 to read as follows: tribes exercising their jurisdiction over which are held by individual Indians or
tribal lands. This part does not apply to tribes, subject to Federal restrictions
PART 179—LIFE ESTATES AND any federal statutory rights to purchase against alienation or encumbrance.
PRESENT AND FUTURE INTERESTS or otherwise acquire an interest in Life estate means an estate in Indian
Indian land reserved to an individual or land the duration of which is measured
Sec. by the life of the life tenant or other
179.1 What is the purpose of this part?
tribe.
living person or persons.
179.2 What terms do I need to know? § 179.2 What terms do I need to know? Life tenant means a person or persons
179.3 Who can hold a life estate?
179.4 Who can be the measuring life for a As used in this part: who hold an interest in a life estate.
life estate? Class means a group of persons who Open class means a class in which
179.5 Who can be designated as a future share an interest in an estate. membership has not been closed to
interest holder? Condition means a qualification or persons qualifying as members.
179.6 Who can be members of a class? restriction that must be satisfied or Open Mine Doctrine means the
179.7 How are interest holders determined occur before an estate or interest doctrine which allows a holder of an
if the conveyance document or order commences, enlarges, reduces, or interest in a life estate to continue the
contains conditions? terminates. Condition includes exploration, extraction, and depletion of
179.8 How are members to be determined if resources of the land and to receive any
there is an open class?
limitations on the estates of grantor and
grantee. Condition does not include the rents, royalties, or profits, without the
179.9 What are the privileges of a life consent of the remainderman, if the
tenant? natural termination of a life estate or
179.10 What is the life tenant’s term estate. activity is in progress or a lease or
responsibility to the remainderman? Contingent remainder means a contract is in effect when the life estate
179.11 How can a future interest holder remainder: vested. Open Mine Doctrine applies to
stop the life tenant from damaging his or (1) In an unborn person; hard mineral extraction and oil and gas
her interest and substantially (2) In a non-specified person; or production.
diminishing its value? (3) Subject to some other condition. Order means a directive issued by the
179.12 How will the Secretary distribute
Contract bonus means consideration Secretary or a court of competent
income and principal between the life jurisdiction.
tenant and the remainderman? paid or agreed to be paid as incentive
Person means a specific, extant
179.13 How will the value of a current life for execution of the contract.
person, unless a specific section states
estate and remainder be determined? Conveyance document means a legal otherwise.
179.14 How does a life estate terminate? instrument that transfers an interest in Present interest means an interest in
179.15 What if I do not want an interest in an estate. Conveyance document does
a life estate?
an estate in Indian land with a right to
not include a will. possession and enjoyment that begins at
179.16 Why do I need to notify the Disproportionately high means the
Secretary about the death of a life tenant? the moment a conveyance takes effect.
investment expenses exceeds the Principal means the corpus and
179.17 How will term estates be treated?
interest income. capital of an interest in an estate,
Authority: 86 Stat. 530; 86 Stat. 744; 94 Estate means the interest which a including any payment received for the
Stat. 537; 96 Stat. 2515; 25 U.S.C. 2, 9, 372, person has in Indian land. Estate
373, 487, 607, and 2201–11; 25 U.S.C. 2201 sale or diminishment of the corpus.
include a life estate. Remainder means a future interest
Note; Pub. L. 108–374, 118 Stat. 1773.
Executory interest means a future which follows the termination of a life
Cross-Reference: For regulations pertaining interest which cuts short or springs from estate or term of years.
to income, rents, profits, bonuses and a preceding estate or interest that is cut Remainderman means one or more
principal from Indian land and the recording short by a condition.

of title documents pertaining thereto, see
persons who hold a remainder.
parts 15, Probate; 150, Land Records and
Extant person means a living person Reversionary interest means an
Title Documents; 152, Issuance of Patents in or legally recognized existing entity. A interest that is held by the grantor and
Fee, Certificates of Competency, Removal of living person does not include a child arises when any preceding estate in a
Restrictions, and Sale of Certain Indian in gestation except when the child in grantee terminates other than by
Lands; 162, Leasing and Permitting; 163, gestation receives the estate or interest condition.
Secretary means the Secretary of the § 179.6 Who can be members of a class? probate process under 43 CFR part 30,
Interior or authorized representative. The members of any class are those we will:
Term estate means an estate which persons who can be identified as (1) Identify the persons who are
terminates upon the expiration of a persons either when we approve the members of the class as of the death of
designated time period or surrender of conveyance or upon the death of the the decedent; and
the interest by the interest holder. decedent. (2) Close the class to any additional
Vested means having absolute right or person who might otherwise qualify as
§ 179.7 How are interest holders members of the class.
title in property. determined if the conveyance document or (c) We may close any class when we:
We means the Secretary of the Interior order contains conditions?
(1) Have received monies attributable
or authorized representative. (a) If we determine that the to the interests held by the class; and
conveyance document imposes any (2) Have determined that there is at
§ 179.3 Who can hold a life estate?
condition on an interest in Indian land, least one person who can receive the
Any person can hold a life estate we will determine whether the monies.
subject to the following: condition is satisfied either: (d) We may close any open class for
(a) Any life estate must have no (1) When we approve the conveyance any purpose that facilitates
conditions in favor of the grantor or a document; or identification of beneficiaries and assets
grantee; and (2) When the decedent dies. of the trust. We may then distribute the
(b) If a life estate is granted to, or for (b) If the condition is established by trust assets to the beneficiaries.
the life of, multiple persons, the order of some other authority, we will
determine whether the condition is § 179.9 What are the privileges of a life
granting document must establish the tenant?
share of the estate each person is to satisfied based upon the order.
receive. (c) It may happen that there are no (a) A life tenant is granted, for the
persons when we approve the term of the life estate, the right to:
§ 179.4 Who can be the measuring life for conveyance document, or at the death of (1) Possess and use estate assets;
a life estate? the decedent, or by the terms of the (2) Receive a share of the principal
Any specific person or persons living order. In this case, the future interest and income produced by the estate as
at the time we approve the conveyance that would have vested in those persons set forth in § 179.12; and
document or upon death of the decedent passes to the grantor or to the estate of (3) Sell the life estate described in the
may be the measuring life for a life the grantor. conveyance document or order.
estate. (b) The rights in paragraph (a) of this
§ 179.8 How are members to be section apply only in the absence of
determined if there is an open class?
§ 179.5 Who can be designated as a future specific provisions to the contrary in the
interest holder? (a) If a class is designated as a conveyance document or order.
recipient of an interest in a conveyance
Any person may be a future interest document, we will: § 179.10 What is the life tenant’s
holder. However, no future interest (1) Identify the persons who are responsibility to the remainderman?
subject to conditions in favor of the members of the class when we approve The provisions of this section apply
grantor or a grantee is valid if the the conveyance document; and absent specific provisions to the
conditions cannot be satisfied before (2) Close the class to any additional contrary in the conveyance document or
either: persons who might otherwise qualify as order.
(a) When we approve the conveyance members. (a) The life tenant has responsibilities
document; or (b) If a class is designated as a to the remainderman as shown on the
(b) When the decedent dies. recipient of an interest during the following table.
If the life estate was created by... Then... Except as to...
(1) Probate order before June 20, the responsibility of the life tenant to the remainderman is defined by distribution of monies from rents,
2006, and the decedent died be- federal law and regulation in effect at the date of the creation of cash bonus and royalties and
fore June 20, 2006. the life estate. valuation of the life estate and
remainder as set forth in this
part.
(2) Operation of law under 25 (i) The life tenant may use the land or structures on the land (includ-
U.S.C. 2206 or federally ap- ing for extraction and production of minerals, oil, gas, and timber)
proved tribal probate code ap- without the remainderman’s consent; and
proved under 25 U.S.C. 2205. (ii) The life tenant must not destroy the estate, commit malicious
waste or fail to reasonably manage the land in a manner consistent
with long-time use and trust status of the land.
(3) Conveyance document before the responsibility of the life tenant to the remainderman is defined by distribution of monies from rents,
the effective date of this part. federal law and regulation in effect on the date the life estate was cash bonuses, and royalties and
created. valuation of the life estate and
remainder as set forth in this
part.
(4) Conveyance document after the (i) The life tenant may use the land or structures on the land (includ-
effective date of this part ing for extraction and production of minerals, oil, gas, and timber)
without the remainderman’s consent; and
(ii) The life tenant must not destroy the estate, commit malicious
waste, or fail to reasonably manage the land in a manner con-
sistent with long-time use and trust status of the land.
(b) In order to preserve and protect conveyance document before the (1) Value of Remainder = I * R, where
the trust, we must review and make a effective date of this regulation and I is the total value to be distributed and
final determination on any contract paragraphs (a)(2), (3), and (4) of this R is the remainder factor obtained from
involving trust assets, unless the law section do not provide otherwise, the Table S for a given life tenant’s age and
provides otherwise. Secretary must: rate of return; and
(c) Our authority to consent to the (1) Distribute all rents and profits, as (2) Value of Life Estate = I ¥ Value
leasing or transfer of Indian land on income, to the current life tenant; of remainder, where I is the total value
behalf of the interest holders is not (2) Distribute any contract bonus one- to be distributed and the Value of
diminished or modified by this section. half each to the current life tenant and remainder was calculated above.
the remainderman;
§ 179.11 How can a future interest holder (3) In the case of mineral contracts, § 179.14 How does a life estate terminate?
stop the life tenant from damaging his or A life estate terminates upon
her interest and substantially diminishing
invest the principal, with interest
its value? income to be paid the life tenant during whichever occurs first:
the life estate, except in those instances (a) The death of the person or persons
If you are a future interest holder who
where the administrative cost of used to measure the duration of the life
feels that a life tenant may be damaging
investment is disproportionately high, estate;
the estate, you may ask us to investigate (b) The transfer by the life tenant of
the use of the land. If we find that the in which case paragraph (e) of this
section applies. The principal allocated the interest to the remainderman or
life tenant has taken actions not
to the remainderman under this section grantor; or
consistent with § 179.10, we may (c) The acquisition by the life tenant
proceed as if the life tenant has will be distributed to the remainderman
upon termination of the life estate. The of all future interests.
trespassed on the property and take
action under parts 162 and 212 of this life tenant will receive distribution of § 179.15 What if I do not want an interest
chapter. the principal allocated to the life tenant in a life estate?
immediately.
You may renounce your interest
§ 179.12 How will the Secretary distribute (d) If the Secretary determines that
during the probate process before the
income and principal between the life paragraphs (a) (2), (3), or (4) of this
tenant and the remainderman? order is issued or transfer your interest
section provide otherwise, the Secretary
(a) The Secretary must determine by conveyance document to another
must distribute the income and
whether: person.
principal in accordance with those
(1) The Secretary ordered the provisions. § 179.16 Why do I need to notify the
distribution of the interests in the life (e) In all other instances, the Secretary Secretary about the death of a life tenant?
estate and remainder in the probate of shall distribute the principal (a) You should notify us of the death
an estate of a decedent who died on or immediately according to the formulas of the life tenant or other person used
after June 20, 2006 or the Secretary set forth in § 179.13. All proceeds to measure the duration of the life estate
approved the conveyance document of attributable to a contingent to ensure that:
the interests after the effective date of remainderman or future interest holder (1) The records properly reflect the
these regulations; subject to class whose membership is present and future interests holders; and
(2) An order or conveyance document not closed will be invested in an (2) Any proceeds received from these
specifies a distribution of proceeds; account with disbursement to take place interests are correctly distributed to the
(3) The vested remainderman and life upon determination of the future holders.
tenant have entered into a written interest holder or closing of membership (b) See 25 CFR 15.104 for instructions
agreement approved by the Secretary of the class. The life tenant will receive on how to notify the Secretary of the
providing for the distribution of distribution of the principal allocated to death.
proceeds; or the life tenant immediately.
(4) The life tenant is entitled, by any § 179.17 How will term estates be treated?
document or agreement or by § 179.13 How will the value of a current life For purposes of distribution of
application of state law, such as the estate and remainder be determined? income, cash bonuses, and principal, we
open mine doctrine, to receive the rents, (a) We will refer to the most current will treat term estates in the same
royalties, and profits attributable to the version of Actuarial Table S, Valuation manner as a life estate.
exploration, extraction or depletion of of Annuities, obtained from 26 CFR
estate resources. 20.2031 to determine the value of your Title 43—Public Lands: Interior
(b) If the Secretary determines that the life estate or remainder and distribute Subtitle A—Office of the Secretary of
conveyance is the result of an order principal under § 179.12(e). the Interior
distributing the probate estate of a (b) Table S specifies the share
decedent who died on or after June 20, attributable to the life estate and PART 4—DEPARTMENT HEARINGS
2006, or the Secretary approved the remainder’s interest, given the age of the AND APPEALS PROCEDURES
conveyance document of the interests life tenant and an established rate of
after the effective date of these return. We will periodically review and 14. Revise the authority citation for
regulations and paragraphs (a)(2) and (3) revise the percent rate of return to be part 4 to read as follows:
of this section do not provide otherwise, used to determine the share attributable Authority: 5 U.S.C. 301; 25 U.S.C. 9, 372–
then the Secretary must distribute all to the interests of the life tenant and the 74, 410; 43 U.S.C. 1201, 1457; Pub. L. 99–
income, principal, and contract bonuses remainderman. The life tenant will 264, 100 Stat. 61, as amended.
and royalties, to the life tenant until the receive the balance of the distribution 15. Revise the cross reference for part
life estate is terminated. after the remainderman’s share has been 4, subpart D, to read as follows:
(c) If the Secretary determines that the calculated. Cross-reference: For regulations pertaining
conveyance is the result of an order (c) Applying Table S, we will use the to the processing of Indian probate matters
distributing the probate estate of a following formulae to determine the within the Bureau of Indian Affairs, see 25
decedent who died before June 20, 2006, value of the interests of the life tenant CFR part 15. For regulations pertaining to the
or the Secretary approved the and remainderman: probate of Indian trust estates within the
Probate Hearings Division, Office of Hearings 16. In subpart D, remove § 4.200 How to use this subpart.
and Appeals, see 43 CFR part 30. For undesignated center heading,
regulations pertaining to the authority, (a) The following table is a guide to
‘‘Determination of Heirs and Approval
jurisdiction, and membership of the Board of the relevant contents of this part by
of Wills, Except as to Members of the
Indian Appeals, Office of Hearings and subject matter.
Appeals, see subpart A of this part. For Five Civilized Tribes and Osage Indians;
regulations generally applicable to Tribal Purchases of Interests Under
proceedings before the Hearings Divisions Special Statutes.’’
and Appeal Boards of the Office of Hearings 17. Revise §§ 4.200 and 4.201 to read
and Appeals, see subpart B of this part. as follows:
For provisions relating to . . . consult . . .
(1) All proceedings in subpart D .............................................................. §§ 4.200 and 4.201.

(2) Appeals to the Board of Indian Appeals generally ............................. §§ 4.310 through 4.318.
(3) Appeals to the Board of Indian appeals from decisions of the Pro- §§ 4.320 through 4.326.
bate Hearings Division in Indian probate matters.
(4) Appeals to the Board of Indian Appeals from actions or decisions of §§ 4.330 through 4.340.
BIA.
(5) Determinations under the White Earth Reservation Land Settlement §§ 4.350 through 4.357.
Act of 1985.
(b) Except as limited by the provisions Indian probate judge (IPJ) means a Civilized Tribes of Oklahoma or the
of this part, the regulations in subparts licensed attorney employed by OHA, Osage Nation.
A and B of this part apply to these other than an ALJ, to whom the Trust property means real or personal
proceedings. Secretary has delegated authority to property, or an interest therein, for
hear and decide Indian probate cases which the United States holds the title
§ 4.201 Definitions. under 5 U.S.C. 556(b). to the property in trust for the benefit of
As used in this subpart: Interested party means any of the an individual Indian or tribe.
Administrative law judge (ALJ) means following: Will means a written document
an administrative law judge with OHA (1) Any potential or actual heir; executed with the required formalities
appointed under the Administrative (2) Any devisee under a will; and intended to pass the testator’s
Procedure Act, 5 U.S.C. 3105. (3) Any person or entity asserting a property upon death.
Agency means the Bureau of Indian claim against a deceased Indian’s estate; 18. Remove §§ 4.202 through 4.308,
Affairs (BIA) agency office, or any other (4) Any tribe having a statutory option along with their undesignated center
designated office in BIA, having to purchase the trust or restricted headings.
jurisdiction over trust or restricted land. property interest of a decedent; or 19. Revise § 4.320 to read as follows:
This term also means any office of a (5) Any co-owner exercising a
§ 4.320 Who may appeal a judge’s order
tribe that has entered into a contract or purchase option. on petition for rehearing or reopening or
compact to fulfill the probate function Intestate means the decedent died regarding purchase of interests in a
under 25 U.S.C. 450f or 458cc. without a valid will. deceased Indian’s trust estate.
BIA means the Bureau of Indian Judge means an ALJ or IPJ.
Any interested party who is adversely
LTRO means the Land Titles and
Affairs within the Department. affected has a right to appeal to the
Records Office within BIA.
Board means the Interior Board of Probate means the legal process by Board from an order of a judge on a
Indian Appeals (IBIA) within OHA, petition for rehearing, a petition for
which applicable tribal, Federal, or state
authorized by the Secretary to hear, reopening, or regarding purchase of
law that affects the distribution of a
consider, and determine finally for the interests in a deceased Indian’s trust
decedent’s estate is applied to:
Department appeals taken by aggrieved (1) Determine the heirs; estate under part 30 of this subtitle.
parties from actions by OHA judges on (2) Determine the validity of wills and 20. Redesignate §§ 4.321 through
petitions for rehearing or reopening, and 4.323 as §§ 4.324 through 4.326 and add
determine devisees;
allowance of attorney fees, and from (3) Determine whether claims against new §§ 4.321 through 4.323 to read as
actions of BIA officials as provided in the estate will be paid from trust funds; follows:
§ 4.1(b)(2) of this subtitle. and § 4.321 How to appeal a judge’s order on
Day means a calendar day, unless (4) Order the transfer of any trust or petition for rehearing or reopening or
otherwise stated. restricted land or trust personalty to the regarding purchase of interests in a
Decedent means a person who is heirs, devisees, or other persons or deceased Indian’s trust estate.
deceased. entities entitled by law to receive the (a) Within 30 days after the date of the
Devise means a gift of property by funds or land. judge’s order, an appellant must file a
will. Also, to give a gift of property by Restricted property means real written notice of appeal signed by the
will. property, the title to which is held by an appellant, the appellant’s attorney, or
Devisee means a person or entity that Indian but which cannot be alienated or other qualified representative as
receives property under a will. encumbered without the consent of the provided in § 1.3 of this subtitle, with
Estate means the trust or restricted Secretary. For the purposes of probate the Board of Indian Appeals, Office of
land and trust personalty owned by the proceedings, restricted property is Hearings and Appeals, U.S. Department
decedent at the time of death. treated as if it were trust property. of the Interior, 801 North Quincy Street,
Heir means any individual or entity Except as the law may provide Arlington, Virginia 22203.
eligible to receive trust or restricted land otherwise, the term ‘‘restricted (b) A notice of appeal not timely filed
and trust personalty from a decedent in property’’ as used in this part does not must be dismissed for lack of
an intestate proceeding. include the restricted lands of the Five jurisdiction.
§ 4.322 What an appeal must contain. (2) All documents added during the 30.136 How will the case proceed after the
(a) The appellant must file a statement appeal proceedings, including any judge or ADM’s recusal?
of the errors of fact and law upon which transcripts prepared because of the 30.137 Can I appeal the judge’s or ADM’s
the appeal is based. This statement may appeal and the Board’s decision. recusal decision?
be included in either the notice of (b) The LTRO must conform the Subpart E—Claims
appeal or an opening brief. duplicate record retained under
30.140 When may I file a claim against the
(b) The notice of appeal must include § 4.324(b) to the original sent under
probate estate?
the names and addresses of parties paragraph (a) of this section and forward 30.141 How must I file a creditor claim
served. the conformed record to the agency against the probate estate?
concerned. 30.142 Will a judge authorize payment of a
§ 4.323 Service of the notice of appeal. 22. Add part 30 to read as follows: claim from the trust estate where the
(a) The appellant must deliver or mail
decedent’s non-trust estate may be
the original notice of appeal to the PART 30—INDIAN PROBATE available?
Board of Indian Appeals. HEARINGS PROCEDURES 30.143 Are there any categories of claims
(b) A copy must be served on the that may not be allowed?
judge whose decision is being appealed Subpart A—Scope of Part; Definitions
30.144 May the judge authorize payment of
as well as on all interested parties. Sec.
the costs of administering the estate?
(c) The notice of appeal filed with the 30.100 How do I use this part?
30.145 When can a judge reduce or
Board must include a certification that 30.101 Will the Secretary probate all the
land or assets in an estate? disallow a claim?
service was made as required by this 30.146 What property is subject to claims?
30.102 What terms do I need to know?
section. 30.147 What happens if there is not enough
21. Revise redesignated §§ 4.234 Subpart B—Commencement of Probate trust personalty to pay all the claims?
through 4.236 to read as follows: Proceedings 30.148 Will interest or penalties charged
30.110 When does OHA commence a against claims after the date of death be
§ 4.324 Record on appeal. probate case? paid?
(a) Upon receiving a copy of the 30.111 How does OHA commence a probate
notice of appeal, the judge whose case? Subpart F—Consolidation and Settlement
30.112 What must a probate file contain? Agreements
decision is being appealed must notify
the agency concerned to return the 30.113 What will OHA do if it receives an 30.150 If the interested parties agree to
duplicate record filed under subpart J of incomplete probate file? settle matters among themselves, what
30.114 What notice of the probate case will does a judge do?
part 30 of this subtitle to the designated
OHA send me? 30.151 May the devisees or eligible heirs in
LTRO. 30.115 Can I review the probate file?
(b) The LTRO must conform the a probate proceeding consolidate their
Subpart C—Judicial Authority and Duties interests?
duplicate record to the original.
30.152 May the parties to a settlement
Thereafter, the duplicate record will be 30.120 What authority does the judge have
agreement or consolidation agreement
available for inspection either at the in probate cases?
waive valuation of trust property?
LTRO or at the agency. 30.121 May a judge appoint a master in a
30.153 Is an order approving a
(c) If a transcript of the hearing was probate case?
30.122 Is the judge required to accept the consolidation agreement or settlement
not prepared, the judge will have a agreement a partition or sale transaction?
transcript prepared and forwarded to master’s recommended decision?
30.123 Will the judge determine matters of Subpart G—Purchase at Probate
the Board within 30 days after receiving status and nationality?
a copy of the notice of appeal. 30.124 Can a judge find a person to be dead 30.160 What can be purchased at probate?
(d) The LTRO must forward the by reason of unexplained absence? 30.161 Who can purchase at probate?
original record on appeal to the Board 30.125 May a judge reopen a probate case 30.162 Does property purchased at probate
by certified mail. to correct errors and omissions? remain in trust or restricted status?
(e) Any party may file an objection to 30.126 What happens if property was 30.163 Is consent required for a purchase at
the record as constituted by the LTRO. omitted from the inventory of the estate? probate?
The party must file his or her objection 30.127 What happens if property was 30.164 What must I do to purchase at
with the Board within 15 days after improperly included in the inventory of probate?
receiving the notice of docketing under the estate? 30.165 Who will OHA notify of a request to
30.128 What happens if an error in BIA’s purchase at probate?
§ 4.325.
estate inventory is alleged during the 30.166 What will the notice of the request
§ 4.325 Docketing the appeal. probate proceeding? to purchase at probate include?
The Board will docket the appeal Subpart D—Recusal of a Judge or ADM 30.167 How does OHA decide whether to
upon receiving the administrative grant a request to purchase at probate?
30.130 When must a judge or attorney 30.168 What will the judge consider in
record from the LTRO and will provide decision maker (ADM) recuse himself or determining the market value of an
notice of the docketing to all interested herself from a probate case? interest?
parties as shown by the record on 30.131 Where may a judge or ADM seek
30.169 If I do not agree with the appraised
appeal. The docketing notice will guidance on recusal?
market value, what can I do?
specify the time within which briefs 30.132 May an interested party to a probate
30.170 What may I do if I disagree with the
may be filed and will cite the proceeding excuse a judge or ADM from
hearing a case? judge’s determination to approve a
procedural regulations governing the purchase at probate?
30.133 May an interested party to a probate
appeal. proceeding request that a judge or ADM 30.171 What happens when OHA grants a
request to purchase at probate?
§ 4.326 Disposition of the record. recuse himself or herself?

30.134 What must the judge or ADM 30.172 When must the successful bidder
(a) After the Board makes a decision consider when deciding whether to pay for the interest purchased?
other than a remand, it must forward to recuse himself or herself? 30.173 What happens after the successful
the designated LTRO: 30.135 What action will the judge or ADM bidder submits payment?
(1) The record filed with the Board take after deciding to recuse himself or 30.174 What happens if the successful
under § 4.324(d); and herself? bidder does not pay within 30 days?
Subpart H—Renunciation of Interest 30.220 How does an interested party obtain 30.252 Can a judge allow fees for attorneys
30.180 May I give up an inherited interest written interrogatories and admission of representing interested parties?
in trust or restricted property or trust facts and documents? 30.253 How must minors or other legal
30.221 May the judge limit the time, place, incompetents be represented?
personalty?
and scope of discovery? 30.254 What happens when a person dies
30.181 How do I renounce an inherited
30.222 What happens if a party fails to without a valid will and has no heirs?
interest? comply with discovery?
30.182 Who may receive a renounced 30.223 What is a prehearing conference? Subpart L—Tribal Purchase of Interests
interest in trust or restricted land? under Special Statutes
30.183 Who may receive a renounced Hearings
30.260 What land is subject to a tribal
interest of less than 5 percent in trust or 30.224 Can a judge compel a witness to purchase option at probate?
restricted land? appear and testify at a hearing? 30.261 What determinations with regard to
30.184 Who may receive a renounced 30.225 Are probate hearings open to the a tribal purchase option will a judge
interest in trust personalty? public? make?
30.185 Can my designated recipient refuse 30.226 Must testimony in a probate 30.262 When will BIA furnish a valuation
to accept the interest? proceeding be under oath or affirmation? of a decedent’s interests?
30.186 Are renunciations that predate the 30.227 Is a record made of formal probate 30.263 When is a final decision issued?
American Indian Probate Reform Act of hearings? 30.264 When may a tribe exercise its
2004 valid? 30.228 What evidence is admissible at a statutory option to purchase?
30.187 May I revoke my renunciation? probate hearing? 30.265 How does a tribe exercise its
30.188 Does a renounced interest vest in the 30.229 Is testimony required for self-proved statutory option to purchase?
person who renounced it? wills, codicils, or revocations?
30.266 May a surviving spouse reserve a life
30.230 What if approval of the self-proved
estate when a tribe exercises its statutory
Subpart I—Summary Probate Proceedings will, codicil, or revocation is contested?
option to purchase?
30.200 What is a summary probate 30.231 Who pays witnesses’’ costs?
30.267 What if I disagree with the probate
proceeding? 30.232 May a judge schedule a
supplemental hearing? decision regarding tribal purchase
30.201 What does a notice of a summary option?
probate proceeding contain? 30.233 What will the official record of the
probate case contain? 30.268 May I demand a hearing regarding
30.202 May I request that summary probate the tribal purchase option decision?
30.234 What will the judge do with the
proceeding be replaced by a formal 30.269 What notice of the hearing will the
original record?
probate proceeding? judge provide?
30.235 What happens if a hearing transcript
30.203 What must a summary probate has not been prepared? 30.270 How will the hearing be conducted?
decision contain? 30.271 How must the tribe pay for the
30.204 How do I seek review of a summary Decisions in Formal Proceedings interests it purchases?
probate proceeding? 30.236 What will the judge’s decision in a 30.272 What are the Superintendent’s
30.205 What happens after I file a request formal probate proceeding contain? duties upon payment by the tribe?
for de novo review? 30.237 What notice of the decision will the 30.273 What action will the judge take to
30.206 What happens if nobody files for de judge provide? record title?
novo review? 30.238 May I file a petition for rehearing if 30.274 What happens to income from land
I disagree with the judge’s decision in interests during pendency of the
Subpart J—Formal Probate Proceedings
the formal probate hearing? probate?
Notice 30.239 Does any distribution of the estate Authority: 5 U.S.C. 301; 25 U.S.C. 9, 372–
occur while a petition for rehearing is
30.210 How will I receive notice of the 374, 410, 2201 et seq.; 43 U.S.C. 1201, 1457.
pending?
formal probate proceeding? Cross-reference: For regulations pertaining
30.240 How will the judge address a
30.211 Will the notice be published in a petition for rehearing? to the processing of Indian probate matters
newspaper? 30.241 Can I submit another petition for within the Bureau of Indian Affairs, see 25
30.212 Can I waive notice of the hearing, rehearing? CFR part 15. For regulations pertaining to the
the time limits, or form of notice? 30.242 When does the judge’s decision on appeal of decisions of the Probate Hearings
30.213 What notice to a tribe is required in a petition for rehearing become final? Division, Office of Hearings and Appeals, to
a formal probate proceeding? 30.243 Can a closed probate case be the Board of Indian Appeals, Office of
30.214 What must a notice of hearing reopened? Hearings and Appeals, see 43 CFR part 4,
contain? 30.244 How will the judge address my subpart D. For regulations generally
Depositions, Discovery, and Prehearing petition for reopening? applicable to proceedings before the Hearings
Conference 30.245 What happens if the judge reopens Divisions and Appeal Boards of the Office of
the case? Hearings and Appeals, see 43 CFR part 4,
30.215 How can I obtain documentation 30.246 When will the decision on subpart B.
related to the probate proceeding? reopening become final?
30.216 How does an interested party obtain Subpart A—Scope of Part; Definitions
permission to take depositions? Subpart K—Miscellaneous Provisions
30.217 How is a deposition taken? 30.250 When does the anti-lapse provision § 30.100 How do I use this part?
30.218 How may the transcript of a apply?
deposition be used? 30.251 What happens if an heir or devisee (a) The following table is a guide to
30.219 Who pays for the costs of taking a knowingly participates in the willful and the relevant contents of this part by
deposition? unlawful killing of the decedent? subject matter.
For provisions relating to . . . Consult . . .
(1) All proceedings in part 30 ................................................................... § § 30.100 through 30.102

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

(3) Commencement of probate ................................................................ §§ 30.110 through 30.115.
(4) Consolidation of interests ................................................................... §§ 30.150 through 30.153.
(5) Formal probate proceedings before an administrative law judge or §§ 30.210 through 30.246.
Indian probate judge.
(6) Probate of trust estates of Indians who die possessed of trust prop- All sections except §§ 30.260 through 30.274.
erty.
For provisions relating to . . . Consult . . .
(7) Purchases at probate .......................................................................... §§ 30.160 through 30.177.

(8) Renunciation of interests .................................................................... §§ 30.180 through 30.191.
(9) Summary probate proceedings before an attorney decision maker .. §§ 30.200 through 30.206.
(10) Tribal purchase of certain property interests of decedents under §§ 30.260 through 30.274.
special laws applicable to particular tribes.
(b) Except as limited by the provisions OHA who conducts a summary (1) Review all the relevant facts and
of this part, the regulations in part 4, proceeding and renders a decision that issues in a probate case;
subparts A and B of this subtitle apply is subject to de novo review by an (2) Reconsider the evidence
to these proceedings. administrative law judge or Indian introduced at a previous hearing;
probate judge. (3) Conduct a formal hearing as
§ 30.101 Will the Secretary probate all the necessary or appropriate; and
BIA means the Bureau of Indian
land or assets in an estate? (4) Issue a decision.
Affairs within the Department.
(a) We will probate only the trust or BLM means the Bureau of Land Department or DOI means the
restricted land or trust personalty in an Management within the Department. Department of the Interior.
estate. Devise means a gift of property by
Board means the Interior Board of will. Also, to give a gift of property by
(b) We will not probate the following Indian Appeals (IBIA) within OHA,
property: will.
authorized by the Secretary to hear, Devisee means a person or entity that
(1) Real or personal property other consider, and determine finally for the
than trust or restricted land or trust receives property under a will.
Department appeals taken by aggrieved Eligible heir means, for the purposes
personalty in an estate of a decedent; parties from actions by OHA judges on
(2) Restricted land derived from of the Act, 25 U.S.C. 2206, any of a
petitions for rehearing or reopening, and decedent’s children, grandchildren,
allotments in the estates of members of allowance of attorney fees, and from
the Five Civilized Tribes (Cherokee, great grandchildren, full siblings, half
actions of BIA officials as provided in siblings by blood, and parents who are:
Choctaw, Chickasaw, Creek and § 4.1(b)(2) of this subtitle.
Seminole) in Oklahoma; and (1) Indian;
Chief ALJ means the Chief (2) Lineal descendents within two
(3) Restricted interests derived from
Administrative Law Judge, Probate degrees of consanguinity of an Indian;
allotments made to Osage Indians in
Hearings Division, OHA. or
Oklahoma (Osage Nation) and Osage (3) Owners of a trust or restricted
Child includes any adopted child.
headright interests owned by Osage interest in a parcel of land for purposes
Codicil means a supplement or
decedents. of inheriting—by descent, renunciation,
(c) We will probate that part of the addition to a will, executed with the
same formalities as a will. It may or consolidation agreement—another
estate of a deceased member of the Five trust or restricted interest in such a
Civilized Tribes or Osage Nation who explain, modify, add to, or revoke
provisions in an existing will. parcel from the decedent.
owned a trust interest in land or a Estate means the trust or restricted
restricted interest in land derived from Consolidation agreement means a
written agreement under the provisions land and trust personalty owned by the
an individual Indian other than a decedent at the time of death.
member of the Five Civilized Tribes or of 25 U.S.C. 2206(e) or 25 U.S.C.
2206(j)(9), by which a decedent’s heirs Formal probate proceeding means a
Osage Nation. trial-type proceeding, conducted by a
(d) Except as limited by the and devisees consolidate interests in
trust or restricted land, entered during judge, in which evidence is obtained,
provisions in this part, the rules in through testimony of witnesses and the
subparts A and B of part 4 of this the probate process, approved by the
judge, and implemented by the probate receipt of relevant documents.
subtitle apply to all proceedings covered Heir means any individual or entity
by this part. order.
eligible to receive trust or restricted land
Creditor means any individual or
and trust personalty from a decedent in
§ 30.102 What terms do I need to know? entity that has a claim for payment from
an intestate proceeding.
As used in this part: a decedent’s estate. I means, in question headings, an
Act means the Indian Land Day means a calendar day, unless heir, a devisee, an owner of trust or
Consolidation Act and its amendments otherwise stated. restricted land or trust personalty, or a
including Public Law 108–374, the Decedent means a person who is creditor.
American Indian Probate Reform Act of deceased. IIM account means funds held in trust
2004 (AIPRA). Decision or order (or decision and in an individual Indian money (IIM)
Administrative law judge (ALJ) means order) means a written document issued account by OST or by a tribe performing
an administrative law judge with OHA by a judge making determinations as to this function under a contract or
appointed under the Administrative heirs, wills, devisees, and the claims of compact. These funds are also referred
Procedure Act, 5 U.S.C. 3105. creditors, and ordering distribution of to as ‘‘trust personalty.’’
Agency means the Bureau of Indian trust or restricted land or trust Indian means, for the purposes of the
Affairs (BIA) agency office, or any other personalty. Decision or order also means Act, 25 U.S.C. 2206:
designated office in BIA, having the decision issued by an attorney (1) Any person who is a member of a
jurisdiction over trust or restricted land. decision maker in a summary probate federally recognized Indian tribe, is
This term also means any office of a proceeding. eligible to become a member of any
tribe that has entered into a contract or De novo review means a process in Indian tribe, or is an owner (as of
compact to fulfill the probate function which an administrative law judge or October 27, 2004) of a trust or restricted
under 25 U.S.C. 450f or 458cc. Indian probate judge, without regard to interest in land;
Attorney decision maker (ADM) the decision previously issued in the (2) Any person meeting the definition
means a licensed attorney employed by case, will: of Indian under 25 U.S.C. 479; and
(3) With respect to the inheritance Restricted property means real § 30.111 How does OHA commence a
and ownership of trust or restricted land property, the title to which is held by an probate case?
in the State of California under 25 Indian but which cannot be alienated or OHA commences a probate case by
U.S.C. 2206, any person described in encumbered without the consent of the confirming the case number assigned by
paragraph (1) or (2) of this definition or Secretary. For the purposes of probate BIA, assigning the case to a judge or
any person who owns a trust or proceedings, restricted property is ADM, and designating the case as a
restricted interest in a parcel of land in treated as if it were trust property. summary probate proceeding or formal
that State. Except as the law may provide probate proceeding.
Indian probate judge (IPJ) means a otherwise, the term ‘‘restricted
licensed attorney employed by OHA, § 30.112 What must a probate file contain?
property’’ as used in this part does not
other than an ALJ, to whom the include the restricted lands of the Five A probate file must contain the
Secretary has delegated authority to Civilized Tribes of Oklahoma or the documents and information described
hear and decide Indian probate cases Osage Nation. in 25 CFR 15.302 and any other relevant
under 5 U.S.C. 556(b). information.
Secretary means the Secretary of the
Interested party means any of the Interior or an authorized representative. § 30.113 What will OHA do if it receives an
following: The authorized representative of the incomplete probate file?
(1) Any potential or actual heir;
(2) Any devisee under a will; Secretary for the performance of probate If OHA determines that the probate
(3) Any person or entity asserting a functions is BIA. The authorized file it received from BIA is not complete
claim against a deceased Indian’s estate; representative of the Secretary for and the probate file is not accompanied
(4) Any tribe having a statutory option adjudication of probate is OHA. by the certification described in 25 CFR
to purchase the trust or restricted Summary probate proceeding means 15.303, OHA may:
property interest of a decedent; or the consideration of a probate file (a) Request the missing information
(5) Any co-owner exercising a without a hearing and on the basis of from BIA;
purchase option. the probate file received from the BIA. (b) Dismiss the case and return the
Intestate means the decedent died A summary probate proceeding may be probate file to BIA for further
without a valid will. conducted if the estate involves only processing;
Judge means an ALJ or IPJ. trust personalty and does not exceed the (c) Issue a subpoena or request for
LTRO means the Land Titles and amount of $5,000 on the date of the production as appropriate to obtain the
Records Office within BIA. death of the decedent. missing information; or
Minor means an individual who has (d) Proceed with a hearing in the case.
Superintendent means a BIA
not reached the age of majority as
Superintendent or other BIA official, § 30.114 What notice of the probate case
defined by the applicable law. will OHA send me?
OHA means the Office of Hearings including a field representative or one
holding equivalent authority. OHA will send a notice of hearing to
and Appeals within the Department.
OST means the Office of the Special Testate means that the decedent potential heirs, devisees, and creditors if
Trustee for American Indians within the executed a valid will. the case is designated as a formal
Department. Testator means a person who has probate proceeding. In a case designated
Per stirpes means by right of executed a valid will. as a summary probate proceeding, OHA
representation, dividing an estate into will send potential heirs and devisees a
Trust personalty means all funds and
equal shares based on the number of notice of the designation. OHA also will
securities of any kind that are held in
decedent’s surviving children and inform potential heirs and devisees that
trust in an IIM account or otherwise
predeceased children who left issue and a formal probate proceeding may be
supervised by the Secretary.
who survive the decedent. The share of requested instead of the summary
Trust property means real or personal process.
a predeceased child of the decedent is property, or an interest therein, for
divided equally among the predeceased which the United States holds the title § 30.115 Can I review the probate file?
child’s surviving children. to the property in trust for the benefit of After OHA receives the case, any
Probate means the legal process by an individual Indian or tribe. interested party may examine the
which applicable tribal, Federal, or
We means the Secretary of the Interior probate file during regular business
State law that affects the distribution of
or an authorized representative as hours and make copies upon payment of
a decedent’s estate is applied to:
defined in this section. the reasonable cost of copying.
(1) Determine the heirs;
(2) Determine the validity of wills and Will means a written document
Subpart C—Judicial Authority and
determine devisees; executed with the required formalities
Duties
(3) Determine whether claims against and intended to pass the testator’s
the estate will be paid from trust funds; property upon death. § 30.120 What authority does the judge
and You means, in regulatory text, an heir have in probate cases?
(4) Order the transfer of any trust or or devisee or owner of trust or restricted A judge has the general authority to:
restricted land or trust personalty to the land or trust personalty, unless a (a) Determine the manner, location,
heirs, devisees, or other persons or specific section defines ‘‘you’’ to have and time of hearings conducted under
entities entitled by law to receive the another meaning. this part, and otherwise to administer
funds or land. the cases assigned to the judge;
Probate staff means a DOI or tribal Subpart B—Commencement of (b) Determine the heirs of any Indian
employee who is trained in Indian Probate Proceedings or eligible heir who dies intestate
probate matters and who is responsible possessed of trust or restricted property;

for preparing the probate file. § 30.110 When does OHA commence a (c) Approve or disapprove a will
Purchase option at probate refers to probate case?
disposing of trust or restricted property;
the process by which eligible purchasers OHA commences probate of a trust (d) Accept or reject any full or partial
can purchase a decedent’s interest estate when OHA receives a probate file renunciation of interest in both testate
during the probate proceeding. from BIA. and intestate proceedings;
(e) Approve or disapprove any (x) Determine and impose sanctions decision is not consistent with
consolidation agreement; and penalties allowed by law; and applicable law, the judge will issue an
(f) Conduct sales at probate and (y) Take such action as necessary to order adopting the findings of fact,
provide for the distribution of interests preserve the trust assets of an estate. making conclusions of law, and entering
in the probate decision and order; a decision.
(g) Allow or disallow claims by § 30.121 May a judge appoint a master in
creditors; a probate case? § 30.123 Will the judge determine matters
(h) Order the distribution of trust (a) In the exercise of any authority of status and nationality?
property to heirs and devisees and under this part, a judge may appoint a (a) The judge in a probate proceeding
determine and reserve the share or master: will determine:
shares that any potential heir or devisee (1) To conduct hearings on the record (1) The status of eligible heirs or
who is missing but not found to be and hear evidence as to all or specific devisees as Indians;
deceased by a court of competent issues in probate cases as assigned by (2) The nationality or citizenship of
jurisdiction is entitled; the judge; eligible heirs or devisees; and
(i) Determine whether a tribe has (2) To make written reports including (3) Whether any of the Indian heirs or
jurisdiction over the trust or restricted findings of fact and conclusions of law; devisees with U.S. citizenship are
property and, if the tribe has and individuals for whom the supervision
jurisdiction, the right of the tribe to take (3) To propose recommended and trusteeship of the United States is
a decedent’s trust or restricted property decisions to the judge. terminated.
under 25 U.S.C. 2206(a)(2)(B)(v), (b) Upon filing, the master’s report (b) A judge may make determinations
2206(a)(2)(D)(iii)(V), or other applicable and recommended decision will be under this section in a current probate
laws; mailed or delivered to the interested proceeding or in a completed probate
(j) Issue subpoenas for the appearance parties. case after a reopening without regard to
of persons, the testimony of witnesses, a time limit.
and the production of documents at § 30.122 Is the judge required to accept
the master’s recommended decision? § 30.124 Can a judge find a person to be
hearings or depositions, under 25 U.S.C.
dead by reason of unexplained absence?
374, upon the judge’s initiative or, No, the judge is not required to accept
within the judge’s discretion, upon the the master’s recommended decision. (a) A judge may make a finding that
request of an interested party; (a) An interested party adversely an heir, devisee, or a person for whom
(k) Administer oaths and affirmations; affected by the report and recommended a probate case has been opened is dead,
(l) Order the taking of depositions and decision may file objections within 30 by reason of extended unexplained
determine the scope and use of days of the mailing or delivery of the absence, and include the date of death
deposition testimony; report. An objecting party must in the finding. The judge will make a
(m) Order the production of simultaneously mail or deliver copies of finding of death only upon clear and
documents and records and determine the objections to all other interested convincing evidence.
the scope and use of the documents and parties. (b) In any proceeding to determine
records; (b) Any other interested party may file whether a person is dead, the following
(n) Rule on matters involving responses to the objections within 15 rebuttable presumptions apply:
interrogatories and any other requests days of the mailing or delivery of the (1) If credible evidence establishes
for discovery, including admissions; objections. A responding party must that the absent person has had contact
(o) Grant or deny stays, waivers, and simultaneously mail or deliver a copy of with any person or entity during the 6-
extensions; his or her responses to the objecting year period preceding the hearing, the
(p) Hear, consider, and rule on party. absent person will be presumed alive;
motions, requests, and objections; (c) The judge will review the record and
(q) Rule on the admissibility of (2) If clear and convincing evidence
of the proceedings heard by the master,
evidence; establishes that none of the persons or
(r) Permit the cross examination of including any objections and responses
filed, and determine whether the entities with whom the absent person
witnesses; was known to have had regular contact
(s) Appoint a guardian ad litem for master’s report and recommended
decision is supported by the evidence of previously has had any such contact
any interested party who is a minor or during the 6-year period preceding the
found by the judge to be not competent record.
(1) If the judge approves the report hearing, the absent person will be
to represent his or her own interests; presumed dead.
(t) Inquire of persons and agencies in and finds that the recommended
order to complete the record in probate decision is supported by the evidence of § 30.125 May a judge reopen a probate
proceedings and to protect the integrity record and is consistent with applicable case to correct errors and omissions?
of the record; law, the judge will enter an order (a) Upon the written request of an
(u) Hear and consider the claims of adopting the recommended decision. interested party, or on the judge’s own
creditors against the estate, allowing or (2) If the judge does not approve the motion, at any time, a judge has the
dismissing claims based on the evidence report or finds that the recommended specific authority to reopen a probate
and the law; decision is not supported by the case to:
(v) Provide information to interested evidence of record, the judge may (1) Determine the correct identity of
parties about the right to appeal and remand the case to the master for further the original allottee, or any heir or
concerning consolidation agreements, proceedings consistent with instructions devisee;
renunciations of interest, and purchases in the remand order, or the judge may (2) Determine whether different
at probate as necessary; hear the case de novo and enter a persons received the same allotment;
(w) Administer the probate case and decision. (3) Decide whether trust patents
regulate the course of any hearing and (3) If the judge finds that the master’s covering allotments of land were issued
the conduct of witnesses, interested findings of fact are supported by the incorrectly or to a non-existent person;
parties, attorneys, and attendees at a evidence in the record but the (4) Determine whether more than one
hearing; conclusions of law or the recommended allotment of land had been issued to the
same person under different names and decision based on his or her findings, decision will include a reference to the
numbers or through other errors in modifying or refusing to modify the pending inventory challenge and note
identification; or property inventory. The judge’s decision that the probate decision is subject to
(5) Address any other error deemed by will become final at the end of 30 days administrative modification once the
the judge sufficient to order the case to from the date it is mailed, unless an inventory dispute has been resolved.
be reopened. aggrieved party files a notice of appeal
(b) The judge will notify interested within that period. Notice of entry of the Subpart D—Recusal of a Judge or
parties if a probate case is reopened and decision must be given in accordance ADM
will refer the case for proceedings in with this part. § 30.130 When must a judge or attorney
accordance with this part. (d) A party aggrieved by the judge’s decision maker (ADM) recuse himself or
decision may appeal it to the Board. herself from a probate case?
§ 30.126 What happens if property was (e) BIA must lodge the record of all
omitted from the inventory of the estate? A judge or attorney decision maker
proceedings with the designated LTRO.
(a) This section applies when, after (ADM) must recuse himself or herself
issuance of a decision and order in a § 30.128 What happens if an error in BIA’s from a probate case in which the judge
formal probate proceeding, it is found estate inventory is alleged during the or ADM determines:
that trust or restricted property or probate proceeding? (a) That the judge or ADM has a
interest therein belonging to a decedent (a) This section applies when, during conflict of interest; or
has not been included in the inventory. a probate proceeding, an interested (b) That the judge’s or ADM’s
(1) The inventory can be modified to party alleges that the estate inventory impartiality may reasonably be
include the omitted property for prepared by BIA is inaccurate and questioned under recognized canons of
distribution under the original decision. should be corrected. Alleged judicial ethics.
(2) Modification to include the inaccuracies may include, but are not
limited to, the following: § 30.131 Where may a judge or ADM seek
omitted property in the decedent’s guidance on recusal?
inventory may be made either (1) Trust property interests should be
administratively by BIA or by a removed from the inventory because the A judge or ADM may consult and seek
modification order by a judge. decedent executed a gift deed or a gift guidance for the determinations listed
(3) Copies of all modifications must deed application during the decedent’s in § 30.130 from:
be furnished to the agency and to all lifetime, and BIA had not, as of the time (a) The code of judicial conduct for
those persons who share in the estate. of death, determined whether to any State in which the judge or ADM is
(b) When the property to be included approve the gift deed or gift deed a member of the bar; or
takes a different line of descent from application; (b) The code of judicial conduct for
that shown in the original decision, BIA (2) Trust property interests should be the Federal courts.
must notify the judge. The judge will: removed from the inventory because a
§ 30.132 May an interested party to a
(1) Conduct a hearing, if necessary, deed through which the decedent probate proceeding excuse a judge or ADM
and issue a decision; and acquired the property is invalid; from hearing a case?
(2) File a record of the proceeding (3) Trust property interests should be
No. No party to a probate proceeding
with the designated LTRO. added to the inventory because the
may excuse a judge or ADM from
decedent attempted to acquire
§ 30.127 What happens if property was hearing a case.
additional trust property interests
improperly included in the inventory of the during the decedent’s lifetime, and BIA § 30.133 May an interested party to a
estate? had not, as of the time of death, probate proceeding request that a judge or
(a) When, after a decision and order determined whether to approve the ADM recuse himself or herself?
in a formal probate proceeding, it is acquisition; and Yes. If you are an interested party to
found that property has been (4) Trust property interests included a probate proceeding, you may request
improperly included in the inventory of in the inventory are improperly that a judge or ADM recuse himself or
an estate, the inventory must be described. herself by filing a written motion for
modified to eliminate this property. A (b) When an error in the estate recusal.
petition for modification may be filed by inventory is alleged, the OHA deciding (a) The motion for consideration of
the superintendent of the agency where official will refer the matter to BIA for recusal must state, by affidavit or
the property is located, or by any resolution in accordance with verified motion, the facts and
interested party. procedures found at 25 CFR parts 150 circumstances that you ask the judge or
(b) A judge will review the merits of (Land Records and Title Documents), ADM to consider.
the petition and record of the title from 151 (Land Acquisitions), and 152 (b) You must file a motion for recusal
the LTRO upon which the modification (Issuance of Patents in Fee, Certificates before the judge or ADM files the
is to be based and enter an appropriate of Competency, Removal of Restrictions, decision and order in a probate
decision. If the decision is entered and Sale of Certain Indian Lands), proceeding.
without a formal hearing, the judge together with the appeal procedures (c) A motion for recusal may not delay
must give notice of the action to all found at 25 CFR part 2 (Appeals from proceedings unless you also request,
parties whose rights are adversely Administrative Actions). and the judge or ADM grants, an
affected, allowing them 30 days in (1) If a final determination resolving extension of time for the hearing of the
which to show cause why the decision the inventory challenge is made before motion.
should not then become final. a final decision is issued in the probate
(c) Where appropriate, the judge may proceeding, the probate decision will § 30.134 What must the judge or ADM
conduct a formal hearing at any stage of reflect the inventory determination. consider when deciding whether to recuse
the modification proceeding. The (2) If a final determination resolving himself or herself?
hearing must be scheduled and the inventory challenge is not made The grounds for which a judge or
conducted in accordance with the rules before a final decision is issued in the ADM must consider recusal include,
of this part. The judge will enter a final probate proceeding, the final probate without limitation:
(a) Personal bias or prejudice § 30.141 How must I file a creditor claim (1) Payments for general assistance,
concerning an interested party or an against the probate estate? welfare or similar assistance;
interested party’s attorney; (a) A creditor must submit an affidavit (2) Social security; or
(b) Personal knowledge of disputed under oath setting forth the debt alleged (3) Claims for old-age assistance.
evidentiary facts obtained before the and an itemized statement of the debt,
filing of the probate case or obtained ex including copies of any documents § 30.144 May the judge authorize payment
parte during the pendency of the necessary to prove the indebtedness, of the costs of administering the estate?
probate proceeding; such as signed contracts, signed notes, Upon motion of the superintendent or
(c) Prior service as an attorney mortgages, account records, billing an interested party, the judge may
concerning a matter or for an interested records, and journal entries. authorize payment of the costs of
party in the current probate proceeding; (b) The creditor’s affidavit also must administering the estate as they arise
(d) Service as a witness, conservator, state whether: and before the allowance of any claims
guardian, or guardian ad litem in a case (1) Parties other than the decedent are against the estate.
involving an interested party; and responsible for any portion of the debt
§ 30.145 When can a judge reduce or
(e) Economic interest in the outcome alleged; disallow a claim?
of the case by the judge or ADM, the (2) Any known or claimed offsets to
spouse of the judge or ADM, or a person the alleged debt exist; and The judge has discretion to decide
within the third degree of relationship (3) The creditor or anyone on behalf that part or all of an otherwise valid
to the judge or ADM or the judge’s or of the creditor has filed a claim or claim is unreasonable, reduce the claim
ADM’s spouse. sought reimbursement against the to a reasonable amount, or disallow the
decedent’s non-trust or restricted claim in its entirety. If a claim is
§ 30.135 What action will the judge or ADM reduced, the judge will order payment
take after deciding to recuse himself or property in any other judicial or quasi-
judicial proceeding. only of the reduced amount.
herself?
(c) The itemized statement must § 30.146 What property is subject to
If the judge or ADM decides to recuse
include: claims?
himself or herself, the judge or ADM
(1) The date and amount of the (a) Except as prohibited by law, all
must immediately file a certificate of
original debt; trust personalty of a decedent on hand
recusal in the file of the affected case
(2) The dates, amounts, and identity or accrued at time of death, including
and notify the Chief ALJ, all interested
of the payor for any payments made; bonds, unpaid judgments, and accounts
parties, any counsel in the case, and the
(3) The dates, amounts, product or receivable, may be used for the payment
affected BIA agencies. The judge or
service, and identity of any person of claims, whether the right, title, or
ADM is not required to state the reason
making charges on the account; interest that is taken by an heir or
for recusal.
(4) The balance remaining on the debt devisee remains in trust or passes out of
§ 30.136 How will the case proceed after on the date of the decedent’s death; and trust.
the judge or ADM’s recusal? (5) Any notification by the decedent (b) Trust personalty that accrues after
Within 30 days of the filing of the that the amount claimed was disputed the date of the decedent’s death from
certificate of recusal, the Chief ALJ will by the decedent. trust or restricted property is not
appoint another judge or ADM to hear available for payment of claims against
§ 30.142 Will a judge authorize payment of
the case, and will notify the parties a claim from the trust estate where the the estate.
identified in § 30.135 of the decedent’s non-trust estate may be
appointment. available? § 30.147 What happens if there is not
enough trust personalty to pay all the
§ 30.137 Can I appeal the judge’s or ADM’s No claim will be paid from trust or claims?
recusal decision? restricted property if the judge
determines that the decedent’s non-trust If, at the date of death, there is not
If you have filed a motion seeking enough trust personalty to pay all
recusal of a judge or ADM under estate may be available to pay the claim.
claims, the claims may be ordered paid
§ 30.133 and the judge or ADM denies § 30.143 Are there any categories of on a pro rata basis or disallowed in their
the motion, you may seek immediate claims that may not be allowed? entirety. The unpaid balance of any
review of the denial by filing a request (a) Claims for care may not be allowed claims will not be enforceable against
with the Chief ALJ under § 4.27(c)(3) of except upon clear and convincing the estate after the estate is closed.
this subtitle. evidence that the care was given on a
§ 30.148 Will interest or penalties charged
Subpart E—Claims promise of compensation and that against claims after the date of death be
compensation was expected. paid?
§ 30.140 When may I file a claim against (b) A claim cannot be allowed if it is:
the probate estate? Interest or penalties charged after the
(1) Based on a written or oral contract,
date of death will not be paid.
(a) A claim by a person or entity as express or implied; and
a creditor against the estate of an Indian (2) The claim has existed for such a Subpart F—Consolidation and
may be filed with BIA before BIA period as to be barred by the applicable Settlement Agreements
transfers the probate file to OHA. tribal or state laws at date of decedent’s
(b) Claims by a creditor also may be death. § 30.150 If the interested parties agree to
filed through OHA with the judge (c) Claims sounding in tort not settle matters among themselves, what
assigned to the case. reduced to judgment in a court of does a judge do?
(1) Claims filed by a creditor through competent jurisdiction, and other (a) A judge may approve a settlement
OHA must be filed before the unliquidated claims not properly within agreement among interested parties
conclusion of the first hearing. the jurisdiction of OHA, are barred. resolving any issue in the probate
(2) Claims that are not filed by the (d) Claims of a State or any of its proceeding if the judge finds that:
conclusion of the first hearing will be political subdivisions, are barred if they (1) All parties to the agreement are
barred forever. relate to: advised as to all material facts;
(2) All parties to the agreement (4) The agreement accomplishes § 30.162 Does property purchased at
understand the effect of the agreement consolidation. probate remain in trust or restricted status?
on their rights; and (d) An interest included in an The property interests purchased at
(3) It is in the best interest of the approved agreement may not be probate must remain in trust or
parties to settle. purchased at probate without consent of restricted status.
(b) In considering the proposed the owner of the consolidated interest. § 30.163 Is consent required for a
settlement agreement, the judge may purchase at probate?
consider evidence of the respective § 30.152 May the parties to a settlement
agreement or consolidation agreement (a) The heir’s consent is not required
values of specific items of property and
waive valuation of trust property? if:
all encumbrances. (1) The interest the heir will receive
(c) If the judge approves the The parties to a settlement agreement in the parcel, subject to the probate
settlement agreement under paragraph or to a consolidation agreement may proceeding, is less than 5 percent of the
(a) of this section, the judge will issue waive valuation of trust property entire undivided ownership interest in
an order approving the settlement otherwise specified by regulation or the the parcel; and
agreement and distributing the estate in Secretary’s rules and requirements. If (2) The heir was not residing on the
accordance with the agreement. the parties waive valuation, the waiver parcel on the date of the decedent’s
must be included in the written death.
§ 30.151 May the devisees or eligible heirs
in a probate proceeding consolidate their agreement. (b) The heir’s consent is required if:
interests? (1) The interest the heir will receive
§ 30.153 Is an order approving a
The devisees or eligible heirs may consolidation agreement or settlement
in the parcel, subject to the probate
consolidate interests under 25 U.S.C. agreement considered a partition or sale proceeding, is 5 percent or more of the
2206(e) in trust property already owned transaction? entire undivided ownership interest in
by the heirs and under 25 U.S.C. the parcel; or
An order issued by a judge approving (2) The interest the heir will receive
2206(j)(9) in property from the a consolidation or settlement agreement
inventory of the decedent’s estate. This is less than 5 percent of the entire
will not be interpreted as a partition or undivided ownership interest in the
does not include interests in Alaska. sale transaction within the provisions of
(a) A judge may approve a written parcel and the heir was residing on the
25 CFR part 152. parcel on the date of the decedent’s
agreement among devisees or eligible
heirs in a probate case to consolidate the death.
Subpart G—Purchase at Probate
interests of a decedent’s devisees or § 30.164 What must I do to purchase at
eligible heirs. § 30.160 What can be purchased at probate?
(1) To accomplish consolidation, the probate?
Any eligible purchaser must submit a
agreement may include conveyances An eligible purchaser may purchase, written request to OHA to purchase at
among decedent’s devisees or eligible during the probate of a trust or restricted probate before the decision and order
heirs of: estate, all or part of the estate of a issues.
(i) Interests in trust or restricted land person who died after June 20, 2006.
in the decedent’s trust inventory; and § 30.165 Who will OHA notify of a request
(a) Any interest in trust or restricted to purchase at probate?
(ii) Interests of the devisees or eligible property, including a life estate that is
heirs in trust or restricted land which OHA will provide notice of a request
part of the estate, may be purchased at
are not part of the decedent’s trust to purchase at probate to:
probate with the following exceptions:
inventory. (a) The heirs or devisees and the
(2) The parties must offer evidence (1) If an interest is included in an Indian tribe with jurisdiction over the
sufficient to satisfy the judge of the approved consolidation agreement, that interest, by first class mail;
percentage of ownership held and interest may not be purchased at probate (b) The BIA agency with jurisdiction
offered by a party. They may offer without consent of the owner; and over the interest, by first class mail;
evidence of the value of each interest in (2) An interest that a devisee will (c) All parties who have submitted a
trust or restricted land included in the receive under a valid will cannot be written request for purchase, by first
agreement if the interest is not part of purchased without the consent of the class mail; and
the decedent’s estate. devisee. (d) All other eligible purchasers, by
(3) If the decedent’s devisees or (b) A purchase option must be posting written notice in at least five
eligible heirs enter into an agreement, exercised before an order is entered and conspicuous places in the vicinity of the
the parties to the agreement are not be included as part of the order in the place of hearing and one conspicuous
required to comply with the rules and estate. place at the agency with jurisdiction
requirements of the Secretary otherwise over the parcel.
applicable to conveyances by deed. § 30.161 Who can purchase at probate?
§ 30.166 What will the notice of the request
(b) If the judge approves an An eligible purchaser is: to purchase at probate include?
agreement, the judge will issue an order (a) Any devisee or eligible heir who The notice posted by OHA will
distributing the estate in accordance is taking an interest in the same parcel include:
with the agreement. of land in the probate proceeding; (a) The manner of sale;
(c) In order to approve an agreement, (b) The date, time, and place of the
(b) Any person who owns an
the judge must find that: sale;
undivided trust or restricted interest in
(1) The agreement to consolidate is (c) A description of the interest to be
the same parcel of land;

voluntary; sold; and
(2) All parties to the agreement know (c) The Indian tribe with jurisdiction (d) The appraised market value of the
the material facts; over the parcel containing the interest; parcel obtained from BIA with the
(3) All parties to the agreement or probate file containing the interest to be
understand the effect of the agreement (d) The Secretary on behalf of the sold and an estimate of the market value
on their rights; and tribe. allocated to the interest being sold.
§ 30.167 How does OHA decide whether to parties and the agencies, stating that you (b) The time for payment may not be
grant a request to purchase at probate? have done so in your written objection. extended.
OHA will sell the interest to the (b) If the objection is timely filed, the (c) Any partial payment received from
eligible purchaser submitting the judge must forward a certified copy of the successful bidder will be returned.
highest bid at not less than the market the complete record in the case to the
value of the interest. Board for review of the determination. Subpart H—Renunciation of Interest
The judge will not issue the decision in
§ 30.168 What will the judge consider in the probate case until the Board has § 30.180 May I give up an inherited interest
determining the market value of an in trust or restricted property or trust
interest?
issued its decision on interlocutory personalty?
review of the determination.
(a) An appraisal of the market value (c) If the objection is not timely filed, If you are 18 years old and not under
of the interest to be sold at probate must the judge will issue an order denying a legal disability, you may renounce an
be based upon an appraisal which gives the request for review as untimely and inherited interest in trust or restricted
appropriate consideration to the will furnish copies of the order to the property, including a life estate, or in
fractionated ownership interest in the interested parties and the agencies. If trust personalty.
parcel. The appraisal must meet the you disagree with the decision of the
standards in the Uniform Standards for § 30.181 How do I renounce an inherited
judge as to whether your objection was interest?
Professional Appraisal Practice timely filed, you may file a petition for
(USPAP). rehearing under § 30.238 after the judge You can renounce an inherited
(b) The judge will use the appraised issues a decision under § 30.236. interest in trust personalty or restricted
market value of the interest being sold property, including an inherited life
and determine the allocation of § 30.171 What happens when OHA grants estate. To do this, you must file with the
proceeds of sale among the heirs based a request to purchase at probate? judge, before the filing of the final order
upon the fractional ownership interests When OHA grants a request to in the probate case, a signed and
in the parcel. purchase at probate, it will: acknowledged declaration specifying
(c) In allocating the proceeds of the (a) Notify the successful bidder by the interest renounced
sale of an interest subject to a life estate, first class mail; and (a) You may retain a life estate in
the allocation among the holder of the (b) Notify OST, the agency that specific interests in trust or restricted
life estate and the holders of any prepared the probate file, and the land and renounce the remainder
remainder interests, the judge must use agency having jurisdiction over the interests by filing the written
the ratios in 25 CFR part 179. interest sold, including the following declaration with the judge.
(d) The judge will order the information:
(1) The estate involved; (b) If you renounce an interest in trust
distribution of the sale proceeds in or restricted land under 25 U.S.C. 2206,
accordance with the determination (2) The parcel and interest sold;
(3) The identity of the successful you may either:
made in paragraph (b) of this section.
bidder; and (1) Designate an eligible person or
§ 30.169 If I do not agree with the (4) The amount of the bid. entity meeting the requirements of
appraised market value, what can I do?
§ 30.172 When must the successful bidder
§ 30.184 as the recipient; or
(a) If you are a potential purchaser or pay for the interest purchased? (2) Renounce without making a
the heir whose interest is to be sold and The successful bidder must pay to designation.
you disagree with the appraised market OST, by cashier’s check or money order (c) If you choose to renounce your
value, you may: via the lockbox, or electronic funds interests in favor of a designated
(1) File a written objection with OHA transfer, the full amount of the purchase recipient, the judge must notify the
within 30 days from the mailing of price within 30 days from the mailing designated recipient.
notice provided under § 30.167, stating of the notice of successful bid.
the reasons for the objection; and § 30.182 Who may receive a renounced
(2) Within 15 days after filing a § 30.173 What happens after the interest in trust or restricted land?
written objection, submit any successful bidder submits payment? If the interest renounced is an interest
supporting documentation showing why (a) When OST receives payment, it in land, a person may renounce only in
the market value should be modified. will notify OHA, and the judge enters an favor of:
(b) The judge will consider any order approving the sale and directing (a) An eligible heir of the testator;
objections, make a determination of the the LTRO to record the transfer of title (b) A person eligible to be a devisee
market value and whether to approve to the interest of the successful bidder. of the interest, if the renouncing person
the purchase under § 30.169, and notify The order will state the date of the title is a devisee of the interest under a valid
all interested parties. transfer, which is the date payment is will, and is:
received. (1) A lineal descendant of the testator;
§ 30.170 What may I do if I disagree with
(b) OST will:
the judge’s determination to approve a
(1) Deposit the payment in the (2) A person who owns a preexisting
purchase at probate?
decedent’s estate account; and undivided trust or restricted interest in
(a) If you are an interested party (2) Distribute the money from the sale the same parcel;
adversely affected by the judge’s to the heir, devisee, or spouse whose (3) Any Indian; or
determination under § 30.171(b), you interest was sold, in accordance with (4) The tribe with jurisdiction over the
may file a written objection with the each respective interest. interest.
judge within 15 days after the mailing
of the determination under § 30.171(b). § 30.174 What happens if the successful § 30.183 Who may receive a renounced
(1) The written objection must state bidder does not pay within 30 days? interest of less than 5 percent in trust or
the reasons for the objection and request (a) If the successful bidder fails to pay restricted land ?
interlocutory appeal of the the full amount of the bid, the sale will An interest in trust or restricted land
determination to the Board. be canceled and the interest in the trust that is not disposed of by a valid will
(2) You must furnish a copy of the or restricted property will be distributed and that represents less than 5 percent
written objection to the other interested as determined by the judge. of the entire undivided ownership of a
parcel of land may be renounced in (a) If the renunciation directs the § 30.203 What must a summary probate
favor of a single heir. The single heir interest to an eligible person or entity, decision contain?
may renounce only in favor of the the interest passes directly to that The written decision in a summary
Indian tribe with jurisdiction over the person or entity; probate proceeding must be in the form
interest or one person who is: (b) If the renunciation does not direct of findings of fact and conclusions of
(a) Another eligible heir; the interest to an eligible person or law, with a proposed decision and order
(b) An Indian related to the heir by entity, the renounced interest passes to of distribution.
blood; or the heirs of the decedent as if the person (a) The decision must contain all of
(c) A co-owner of another trust or renouncing the interest had predeceased the following elements:
restricted interest in the same parcel. the decedent. (1) One of the following:
(i) If the decedent left legal heirs or
§ 30.184 Who may receive a renounced devisees, the names of each heir or
interest in trust personalty? Subpart I—Summary Probate
Proceedings devisee with the identifying numbers
If the interest renounced is an interest assigned by BIA, their birth dates,
in trust personalty, a person may § 30.200 What is a summary probate relationships to the decedent, the
renounce in favor of any person or proceeding? distribution of shares of each heir or
entity. (a) A summary probate proceeding is devisee, and the names of the recipients
(a) The Secretary will maintain and the consideration of a probate case of renounced or disclaimed interests; or
continue to manage trust personalty without a formal hearing on the basis of (ii) If the decedent did not leave legal
transferred by renunciation to a the probate file received from BIA. A heirs or devisees, a statement to that
following person or entity: summary probate proceeding may be effect;
(1) A lineal descendant of the testator; conducted by a judge, an ADM, or a (2) Citations to the law of descent and
(2) A person who owns a preexisting master, as determined by the distribution in accordance with which
undivided trust or restricted interest in supervising judge. the decision is made;
the same parcel of land; (3) A statement allowing or
(3) The tribe with jurisdiction over the (b) A decedent’s estate may be
processed summarily if the estate disallowing claims against the estate in
interest in land; or accordance with this part, and an order
(4) Any Indian. involves only cash and the total value
of the estate does not exceed $5,000 on directing the amount of payment of all
(b) The Secretary will directly approved claims;
disburse and distribute trust personalty the date of death.
(4) A statement approving or
transferred by renunciation to a person § 30.201 What does a notice of a summary disapproving any renunciation;
or entity who is not eligible under probate proceeding contain? (5) A statement of whether the heirs
§ 30.185. or devisees are Indian, non-Indian, or
The notice of summary probate
§ 30.185 Can my designated recipient proceeding will contain the following: eligible to hold property in trust status;
refuse to accept the interest? (6) A statement advising all interested
(a) Notice of the right of any parties of their right to seek de novo
Yes. The recipient may refuse to interested party to request treatment of review in accordance with this part, and
accept the interest. The refusal must be the probate case as a formal probate that, if they fail to do so, the decision
made in writing and filed before the proceeding; will become final 30 days after the
judge. If the designated recipient of the
(b) A copy of the OHA–7, a statement mailing of the written decision; and
renounced interest refuses to accept that
of the IIM account balance, and a copy (7) In a testate case only, a statement
interest, then the renounced interest
of the death certificate, except to a that:
passes to the heirs of the decedent as if
creditor who is not an eligible heir; (i) Approves or disapproves a will;
the person renouncing the interest had
(c) A notice that the only claim of a (ii) Interprets provisions of the
predeceased the decedent.
creditor that will be considered is that approved will; and
§ 30.186 Are renunciations that predate of a person defined as an eligible heir (iii) Describe the share each devisee is
the American Indian Probate Reform Act of under these regulations, or of any to receive, subject to any encumbrances.
2004 valid? person or entity who filed as a creditor (b) When the judge or ADM issues a
Any renunciation filed and with the BIA before the transfer of the decision, the judge must issue a notice
implemented in a probate order issued probate file to OHA, with a copy of the of the decision to all parties who have
before the effective date of the American claim; or claim any interest in the estate, and
Indian Probate Reform Act of 2004 is mail or deliver a copy of the notice,
(d) A notice that an interested party together with a copy of the decision, to
ratified. may renounce or disclaim an interest, in each affected agency and to each
§ 30.187 May I revoke my renunciation? writing, either generally or in favor of a interested party.
No. A written renunciation is designated person or entity; and
irrevocable after the judge accepts the (e) Any other information determined § 30.204 How do I seek review of a
to be relevant by OHA. summary probate proceeding?
renunciation and enters the final order
in the probate proceeding. (a) If you are an interested party who
§ 30.202 May I request that a summary is adversely affected by the written
§ 30.188 Does a renounced interest vest in probate proceeding be replaced by a formal decision in a summary probate
the person who renounced it? probate proceeding?
proceeding, you may seek de novo
No. An interest in trust or restricted Yes. Interested parties who are review of the case by filing a request
property renounced under § 30.181 is devisees or eligible heirs have 30 days with the OHA office that issued the
not considered to have vested in the from the mailing of the notice to file a decision.
renouncing heir or devisee, and the written request for a formal probate (b) The request for de novo review
renunciation is not considered a transfer hearing, to file a claim as a creditor, or must be in writing and signed, and must
by gift of the property renounced to the to renounce or disclaim an interest in contain the following information:
renouncing person. the estate. (1) The name of the decedent;
(2) A description of the requestor’s (b) A presumption of actual notice is offered for probate, the devisees
relationship to the decedent; exists with respect to any person to under the will, the drafter of the will,
(3) An explanation of what errors the whom OHA sent a notice under and the attesting witnesses to the will;
requestor alleges were made; and paragraph (a) of this section, unless the (d) Cite this part as the authority and
(4) An explanation of how the notice is returned by the postal service jurisdiction for holding the hearing;
requestor is adversely affected by the unclaimed by the addressee. (e) Inform all persons who claim to
decision. (c) OHA must post the notice in each have an interest in the estate of the
(c) You must send or deliver the of the following locations: decedent, including persons having
request to OHA within 30 days after the (1) Five or more conspicuous places claims against the estate, to be present
date the decision is mailed. in the vicinity of the designated place of at the hearing on penalty of losing the
§ 30.205 What happens after I file a hearing; right to present evidence at the hearing;
request for de novo review? (2) Each agency office with (f) Include notice of the opportunity
jurisdiction over each parcel of trust or to consolidate interests at the probate
(a) Within 10 days of receiving a
restricted property in the estate; and hearing, including that the heirs may
request for de novo review, OHA will
(3) Any other places and on other propose additional interests for
notify the agency that prepared the
reservations that the judge deems consolidation, and include notice of the
probate file, all other affected agencies,
appropriate. opportunity for renunciation either
and all interested parties of the de novo
generally or in favor of a designated
review, and assign the case to a judge. § 30.211 Will the notice be published in a
(b) The judge will review the merits recipient;
newspaper?
of the case, conduct a hearing as (g) In estates for decedents whose date
The judge may cause a notice of of death is on or after June 20, 2006,
necessary or appropriate under the hearing to be published in a newspaper
regulations in this part, and issue a new include notice of the possibilities of
of general circulation in the vicinity of purchase and sale of trust or restricted
decision in accordance with this part. the designated place of hearing not property by heirs, co-owners, a tribe, or
§ 30.206 What happens if nobody files for fewer than 20 calendar days before the the Secretary; and
de novo review? hearing. The cost of publication may be (h) State that the hearing may be
If no interested party requests de novo paid from the assets of the estate under continued to another time and place.
review within 30 days of the date of the § 30.144.
Depositions, Discovery, and Prehearing
written order, OHA will send: § 30.212 Can I waive notice of the hearing, Conference
(a) The final order confirming the the time limits, or form of notice?
written decision to all interested parties (a) An interested party may waive § 30.215 How can I obtain documentation
with notice of the right to file a petition notice of hearing, the time limits, and
related to the probate proceeding?
for rehearing under this part; the form of notice by: (a) An interested party may make a
(b) The complete original record and written demand to produce documents
(1) Appearing at the hearing and
the final order to the agency that for inspection and copying or
participating in the hearing without
prepared the probate file; and photographing. This demand:
(c) A copy of any relevant portions of objection; or
(2) Filing a written waiver with the (1) May be made at any stage of the
the record to any other affected agency. proceeding before the conclusion of the
judge before the hearing.
(b) The requirements for notice by hearing;
Subpart J—Formal Probate (2) May be made upon any other party
Proceedings posting may not be waived.
to the proceeding or upon a custodian
Notice § 30.213 What notice to a tribe is required of records concerning interested parties
in a formal probate proceeding? or their trust property;
§ 30.210 How will I receive notice of the In probate cases in which the (3) Must be made in writing, and a
formal probate proceeding? decedent died on or after June 20, 2006: copy must be filed with the judge; and
OHA will provide notice of the formal (a) The judge must notify any tribe (4) May demand copies of any
probate proceeding by mail and by with jurisdiction over the trust or documents, photographs, or other
posting. A posted and published notice restricted land in the estate of the tangible things that are relevant to the
may contain notices for more than one pendency of a proceeding; and issues, not privileged, and in another
hearing, and need only specify the (b) The certificate of mailing of a party’s or custodian’s possession,
names of the decedents, the captions of notice of probate hearing to the tribe at custody, or control.
the cases and the dates, times, places its record address will be conclusive (b) Custodians of official records will
and purposes of the hearings. evidence that the tribe had notice of the furnish and reproduce documents, or
(a) OHA will send the notice to decedent’s death, of the probate permit their reproduction, in
potential heirs and devisees named in proceedings, and of the right to accordance with the rules governing the
the probate file and other interested purchase. custody and control of the records.
parties identified by OHA in the case. (c) Documentation may be made
The notice must: § 30.214 What must a notice of hearing available to a member of the public,
(1) Be sent by first class mail during contain?
subject to any law to the contrary, who
the pendency of the probate proceeding The notice of hearing must: is not an interested party upon payment
to potential heirs and devisees and other (a) State the name of the decedent and of the cost of producing the documents,
interested parties identified by OHA in caption of the case; as determined reasonable by the
the case; (b) Specify the date, time, and place custodians of the records.
(2) Be sent and posted at least 20 that the judge will hold a hearing to
calendar days before the date of hearing, determine the heirs of the decedent and, § 30.216 How does an interested party
not counting the hearing date; and if a will is offered for probate, to obtain permission to take depositions?
(3) Include a certificate of mailing determine the validity of the will; (a) Depositions may be taken upon
with the date of mailing, signed by the (c) Name all potential heirs of the stipulation of the parties or by order of
person mailing the notice. decedent known to OHA, and, if a will the judge.
(b) When an interested party files a signed, unless the judge determines that § 30.222 What happens if a party fails to
written application, the judge may order the reason given for refusal to sign comply with discovery?
the taking of the sworn testimony of any requires rejection of the transcript in (a) If a party fails without good cause
person by deposition upon oral whole or in part. to comply with discovery under this
examination for the purpose of (d) The officer must certify on the part or any order issued, the judge may:
discovery or for use as evidence at a transcript that the witness was duly (1) Draw inferences with respect to
hearing. The application must set forth: sworn by the officer and that the the discovery request adverse to the
(1) The name and address of the transcript is a true record of the claims of the party who has failed to
proposed witness; witness’s testimony. The officer must comply with discovery or the order, or
(2) The reasons why the deposition then hand deliver or mail the original (2) Make any other ruling as the judge
should be taken; and two copies of the transcript to the determines just and proper.
(3) The name and address of the judge. (b) Failure to comply with discovery
person, qualified under § 30.217(a) to includes failure to:
§ 30.218 How may the transcript of a
take depositions; and (1) Comply with a request for the
deposition be used?
(4) The proposed time and place of production of a document;
the examination, which must be at least A transcript of a deposition ordered (2) Appear for examination;
20 days after the date of the filing of the and taken in accordance with the (3) Respond to interrogatories or
provisions of this part may be offered by requests for admissions; or
application.
(c) The judge may order the taking of any party or the judge in a hearing if the (4) Comply with an order of the judge.
a deposition. The order must be served judge finds that the evidence is
upon all interested parties and must otherwise admissible and: § 30.223 What is a prehearing conference?
(a) The witness is unavailable; or Before a hearing, the judge may order
state: (b) The interest of fairness is served
(1) The name of the witness; the parties to appear for a conference to:
by allowing the transcript to be used. (a) Simplify or clarify the issues;
(2) The time and place of the
examination, which must be at least 15 § 30.219 Who pays for the costs of taking
(b) Obtain stipulations, admissions,
days after the date of the order; and a deposition? agreements on documents,
(3) The name and address of the The party who requests the taking of understandings on matters already of
officer before whom the examination is a deposition must make arrangements record, or similar agreements that will
to be made. for payment of any costs incurred. The avoid unnecessary proof;
(d) The officer and the time and place judge may assign the costs in the order. (c) Limit the number of expert or
in paragraphs (c)(2) and (c)(3) of this other witnesses to avoid excessively
section need not be the same as those § 30.220 How does an interested party cumulative evidence;
requested in the application under obtain written interrogatories and (d) Facilitate agreements disposing of
admission of facts and documents? all or any of the issues in dispute; or
paragraph (b) of this section.
(a) An interested party may serve (e) Resolve such other matters as may
§ 30.217 How is a deposition taken? upon any other interested party written simplify and shorten the hearing.
(a) The witness must appear before interrogatories and requests for
Hearings
the judge or before an officer authorized admission of facts and documents. The
to administer oaths by the law of the interested party may do this only if: § 30.224 Can a judge compel a witness to
United States or by the law of the place (1) The interrogatories and requests appear and testify at a hearing?
of the examination. are served in sufficient time to permit (a) The judge can issue a subpoena for
(b) The witness must be examined answers to be filed before the hearing, a witness to appear and testify at a
under oath or affirmation and subject to or as otherwise ordered by the judge; hearing and to bring documents or other
cross-examination. The witness’s and material to the hearing.
testimony must be recorded by the (2) Copies of the interrogatories and (1) An interested party may request
officer or someone in the officer’s requests are filed with the judge. that the judge issue a subpoena for the
presence. (b) A party receiving interrogatories or appearance of a witness to testify. The
(c) When the testimony is fully requests served under paragraph (a) of request must state the name, address,
transcribed, it must be submitted to the this section must: and telephone number or other means of
(1) Serve answers upon the requesting
witness for examination and must be contacting the witness, and the reason
party within 30 days from the date of
read to or by him or her, unless for the request. The request must be
service of the interrogatories or requests,
examination and reading are waived. timely. The requesting party must mail
(1) Any changes in form or substance or within another deadline agreed upon
the request to all other interested parties
that the witness desires to make must be by the parties or prescribed by the
and to the witness at the time of filing.
entered upon the transcript by the judge; and
(2) File a copy of the answers with the (2) The request must specify the
officer, with a statement of the reasons documents or other material sought for
judge.
given by the witness for making them. production under the subpoena.
(2) The transcript must then be signed § 30.221 May the judge limit the time, (3) The judge will grant or deny the
by the witness, unless the interested place, and scope of discovery? motion or request in writing and mail
parties by stipulation waive the signing, Yes. The judge may limit the time, copies of the order to all the interested
or the witness is unavailable or refuses place, and scope of discovery: parties.
to sign. (a) Upon timely motion by any (4) A person subpoenaed may seek to
(3) If the transcript is not signed by interested party, if that party also gives avoid a subpoena by filing a motion to
the witness, the officer must sign it and proper notice to all interested parties quash with the judge and sending
state on the record the fact of the and shows good cause; or copies to the interested parties.
waiver, the unavailability of the (b) When the judge determines that (b) Anyone whose legal residence is
witness, or the refusal to sign together limits are necessary to prevent delay of more than 100 miles from the hearing
with the reason given, if any. The the proceeding or prevent undue location may ask the judge to excuse his
transcript may then be used as if it were hardship to a party or witness. or her attendance under subpoena.
(1) If the judge denies the request, the outweighed by the risk of undue § 30.231 Who pays witnesses’ costs?
judge may assign costs for the confusion of the issues or delay. (a) Interested parties who desire a
transportation of the witness to the (c) Hearsay evidence is admissible. witness to testify at a hearing must make
place of hearing or deposition. The judge may consider the fact that their own financial and other
(2) The judge will inform the evidence is hearsay when determining arrangements for the witness.
interested parties of the request and the its probative value. (b) The judge may order payment of
decision in writing in a timely manner. (d) A judge may admit a copy of a per diem, mileage, and subsistence at a
(c) A judge may assign the costs of document into evidence or may require rate not to exceed that allowed to
requiring a non-party to appear at a the admission of the original document. witnesses called in the U.S. District
hearing or a deposition. After examining the original document, Courts.
(d) If a subpoenaed person fails or the judge may substitute a copy of the (c) In the order for payment, the judge
refuses to appear at a hearing or to original document and return the must specify whether such costs are to
testify, the judge may file a petition in original. be allocated and charged against the
United States District Court for issuance (e) The Federal Rules of Evidence do interest of the party calling the witness
of an order requiring the subpoenaed not directly apply to the hearing, but or against the estate.
person to appear and testify. may be used as guidance by the judge (d) Costs of administration allowed
(e) The judge may seek by petition to and the parties in interpreting and against the estate under paragraphs (b)
the appropriate United States District applying the provisions of this section. or (c) of this section will have a priority
Court the invocation of powers of (f) The judge may take official notice for payment greater than that for any
contempt when necessary and of any public record of the Department creditor claims allowed.
appropriate to ensure due process and and of any matter of which federal
orderly prosecution of probate cases courts may take judicial notice.
§ 30.232 May a judge schedule a
under the law. supplemental hearing?
(g) The judge determines the weight
given to any evidence admitted. Yes. A judge may schedule a
§ 30.225 Are probate hearings open to the
public? (h) Any party objecting to the supplemental hearing if he or she deems
admission or exclusion of evidence it necessary.
The probate hearings conducted
under this part are open to public shall concisely state the grounds. A § 30.233 What will the official record of the
attendance. ruling on every objection must appear in probate case contain?
(a) In the exercise of discretion, the the record. After the completion of the hearing,
judge may close the hearing for the (i) There is no privilege under this the judge will compile the official
testimony of a party or other witness part as to any communication between record. The official record of the probate
and exclude all persons but the a decedent and any attorney advising case will contain:
interested parties. the decedent as to any matter relevant (a) A copy of the posted public notice
(b) Except as the judge finds necessary to an issue between parties, all of whom of hearing showing the posting
to comply with due process or for other claim through that decedent. certifications;
good cause shown, and subject to (b) A copy of each notice served on
transfer to the IBIA on appeal, the judge § 30.229 Is testimony required for self-
proved wills, codicils, or revocations? interested parties with proof of mailing;
may seal the record or transcript of (c) The record of the evidence
testimony taken during a closed hearing. The judge may approve a self-proved received at the hearing, including any
will, codicil, or revocation, if transcript made of the testimony;
§ 30.226 Must testimony in a probate uncontested, and order distribution
proceeding be under oath or affirmation? (d) Claims filed against the estate;
with or without the testimony of any (e) Any wills, codicils, and
Yes. Testimony in a probate attesting witness.
proceeding must be under oath or revocations;
§ 30.230 What if approval of the self- (f) Inventories and valuations of the
affirmation.
proved will, codicil, or revocation is estate;
§ 30.227 Is a record made of formal contested? (g) Pleadings and briefs filed;
probate hearings? (a) If the approval of a will, codicil, (h) Special or interim orders;
(a) The judge must make a verbatim (i) Copies of all proposed or accepted
or revocation is contested, the attesting
recording of all formal probate hearings. settlement agreements, consolidation
witnesses who are in the reasonable
The judge will order the transcription of agreements, and renunciations and
vicinity of the place of hearing and who
recordings of hearings as the judge acceptances of renounced property;
are of sound mind must be produced
determines necessary. (j) In the case of sale of estate property
and examined.
(b) If the judge orders the at probate, copies of notices of sale,
(b) If none of the attesting witnesses
transcription of a hearing, the judge will appraisals and objections to appraisals,
resides near the place of hearing at the
make the transcript available to requests for purchases, all bids received,
time appointed for proving the will, the
interested parties. and proof of payment;
judge may:
(k) The decision, order, and the
§ 30.228 What evidence is admissible at a (1) Order the deposition of any
notices thereof; and
probate hearing? available attesting witnesses at a (l) Any other documents or items
(a) A judge conducting probate location reasonably near the residence deemed material by the judge.
proceedings under this part may admit of the witness;
any written, oral, documentary, or (2) Admit the testimony of other § 30.234 What will the judge do with the
demonstrative evidence that is: witnesses to prove the testamentary original record?
(1) Relevant, reliable, and probate; capacity of the testator and the (a) The judge must send the original
and execution of the will; and record to the designated LTRO in
(2) Not privileged under Federal law, (3) As evidence of the execution, accordance with 25 CFR part 150.
or unduly repetitious or cumulative. admit proof of the handwriting of the (b) The judge must send a copy of:
(b) The judge may exclude evidence if testator and of the attesting witnesses, or (1) The order to the agency originating
its probative value is substantially of any of them. the probate, and
(2) The order and inventory to other expiration of the 30 days allowed for the (a) The issuance of necessary orders
affected agencies. filing of a petition for rehearing by nunc pro tunc to correct clerical errors
aggrieved parties. in the decision; and
§ 30.235 What happens if a hearing (b) The reopening of a case under this
transcript has not been prepared? § 30.238 May I file a petition for rehearing part.
When a hearing transcript has not if I disagree with the judge’s decision in the
been prepared, the recording of the formal probate hearing? § 30.242 When does the judge’s decision
hearing must be retained in the office of (a) Any interested party may file with on a petition for rehearing become final?
the judge issuing the decision until the the judge a written petition for rehearing The decision will become final upon
time allowed for rehearing or appeal has within 30 days after the date on which the expiration of the 30 days allowed for
expired, and the original record notice of the decision is mailed. the filing of a notice of appeal, as
returned to the LTRO must contain a (b) If the petition is based on newly- provided in this part.
statement indicating that no transcript discovered evidence, it must:
(1) Be accompanied by affidavits or § 30.243 Can a closed probate case be
was prepared. reopened?
declarations of witnesses stating fully
Decisions in Formal Proceedings the content of the new evidence; and (a) A person claiming an interest in an
(2) State the reasons for the failure to estate may file a petition for reopening
§ 30.236 What will the judge’s decision in discover and present that evidence at a closed probate case with the OHA
a formal probate proceeding contain? office that issued the original decision.
the hearings held before the issuance of
The judge must decide the issues of the decision. (1) A case may be reopened based
fact and law involved in any (c) A petition for rehearing must state upon lack of notice or to prevent
proceedings and issue a written specifically and concisely the grounds manifest injustice only.
decision. on which it is based. (2) All grounds for the reopening must
(a) In all cases, the decision will: (d) The judge must forward a copy of be set forth fully. If based on alleged
(1) List the names of each heir or the petition for rehearing to the affected errors of fact, all such allegations must
devisee with the identifying numbers as agencies. be under oath and supported by
assigned by BIA, birth dates, and affidavits.
relationship to the decedent; § 30.239 Does any distribution of the (3) If the petition for reopening is
(2) Describe the distribution of shares estate occur while a petition for rehearing based upon lack of notice of the original
of each of the heirs, in addition to the is pending? proceedings, the petition must be filed
names of the recipients of renounced or The agencies must not initiate within 1 year from the date the
disclaimed interests; payment of claims or distribute any petitioner discovered the error.
(3) Provide the information necessary portion of the estate while the petition (b) A judge may reopen a case on the
to identify the persons and property is pending, unless otherwise directed by judge’s own initiative.
interests involved in any settlement or the judge.
§ 30.244 How will the judge address my
consolidation agreement, renunciations § 30.240 How will the judge address a petition for reopening?
of interest, and purchases at probate; petition for rehearing? (a) If the judge finds that proper
(4) Allow or disallow claims against (a) If proper grounds are not shown, grounds are not shown, the judge will
the estate in accordance with this part, or if the petition is not timely filed, the issue an order denying the petition and
and order the amount of payment for all judge will issue an order denying the giving the reasons for the denial. Copies
approved claims; petition for rehearing and setting forth of the judge’s decision must be mailed
(5) Approve or disapprove any the reasons and furnish copies of the to the petitioner, the agencies, and those
renunciation, settlement agreement, order to the petitioner, the agencies, and persons whose rights would be affected.
consolidation agreement, or purchase at the interested parties. (b) If the petition appears to show
probate; (b) If the petition appears to show merit, the judge must cause copies of
(6) State whether the heirs or devisees merit, the judge must: the petition and all papers filed by the
are Indian, non-Indian, or eligible to (1) Cause copies of the petition and petitioner to be served on those persons
hold property in trust status; and supporting papers to be served on those whose interest in the estate could be
(7) Include a determination of any persons whose interest in the estate affected by the granting of the petition.
rights of dower, curtesy, or homestead might be adversely affected by the These persons may respond to the
that may constitute a burden upon the granting of the petition; petition by filing answers, cross-
interest of the heirs. (2) Allow all persons served a petitions, or briefs. The filings must be
(b) In a testate case, the decision will reasonable, specified time in which to made within the time periods set by the
also: submit answers or legal briefs in judge.
(1) Approve or disapprove a will; response to the petition; and
(2) Interpret provisions of the (3) Consider, with or without a § 30.245 What happens if the judge
approved will; and hearing, the issues raised in the petition. reopens the case?
(3) Describe the share each devisee is (c) The judge may affirm, modify, or Upon reopening, the judge may
to receive, subject to any encumbrances. vacate the former decision. affirm, modify, or vacate the former
(d) Upon entry of a final order, the decision.
§ 30.237 What notice of the decision will (a) Copies of the judge’s decision on
the judge provide?
judge must distribute the order as
provided in this part. reopening must be mailed to the
When the judge issues a decision, the petitioner and to all persons who
judge must issue a notice of the decision § 30.241 Can I submit another petition for received copies of the petition.
to all parties who have or claim any rehearing? (b) By order directed to the agency,
interest in the estate, and mail or deliver No. Successive petitions for rehearing the judge may suspend further
a copy of the notice, together with a are not permitted. The jurisdiction of distribution of the estate or income
copy of the decision, to each affected the judge terminates upon the issuance during the reopening proceedings.
agency and to each interested party. The of a decision finally disposing of a (c) The judge must file the record
decision will not become final until the petition for rehearing, except for: made on a reopening petition with the
designated LTRO and must furnish a § 30.246 When will the decision on Subpart K—Miscellaneous Provisions
duplicate record to the affected reopening become final?
agencies. The decision on reopening will § 30.250 When does the anti-lapse
become final upon the expiration of the provision apply?
30 days allowed for the filing of a notice (a) The following table illustrates how
of appeal, as provided in this part. the anti-lapse provision applies.
If . . . And . . . Then . . .
an Indian testator devises trust property to any the devisee dies before the testator, leaving the lineal descendants take the right, title, or
of his or her grandparents or to the lineal de- lineal descendants. interest so given by the will per stirpes
scendant of a grandparent.
(b) For purposes of this section, (2) Petitions for allowance of fees property died intestate and without
relationship by adoption is equivalent to must be filed before the close of the last heirs, and the judge will determine
relationship by blood. hearing. whether 25 U.S.C. 2206(a) applies.
§ 30.251 What happens if an heir or (b) Nothing in this section prevents an (b) If 25 U.S.C. 2206(a) does not
devisee knowingly participates in the willful attorney from petitioning for additional apply, the judge will order the escheat
and unlawful killing of the decedent? fees to be considered at the disposition of the property in accordance with:
Any person who knowingly of a petition for rehearing and again
after an appeal on the merits. An order (1) 25 U.S.C. 373a if the trust or
participates, either as a principal or as restricted property is not on the public
an accessory before the fact, in the allowing attorney fees is subject to a
petition for rehearing and to an appeal. domain; or
willful and unlawful killing of the
decedent, may not take, directly or (2) 25 U.S.C. 373b if the trust or
§ 30.253 How must minors or other legal
indirectly, any inheritance or devise incompetents be represented?
restricted property is on the public
under the decedent’s will. This person domain.
will be treated as if he or she had Minors and other legal incompetents
predeceased the decedent. who are interested parties must be Subpart L—Tribal Purchase of
represented at all hearings by legally Interests Under Special Statutes
§ 30.252 Can a judge allow fees for appointed guardians, or by guardians ad
attorneys representing interested parties? litem appointed by the judge. In § 30.260 What land is subject to a tribal
(a) Except for attorneys representing appropriate cases, the judge may order purchase option at probate?
creditors, the judge may allow fees for the payment of fees to the guardian ad Sections 30.260 through 30.274 apply
attorneys representing interested litem from the assets of the estate. to formal proceedings in Indian probate
parties. that relate to the tribal purchase of a
(1) At the discretion of the judge, § 30.254 What happens when a person
these fees may be charged against the dies without a valid will and has no heirs? decedent’s interests in the trust and
interests of the party represented or as (a) The judge will determine whether restricted land shown in the following
a cost of administration. a person with trust or restricted table.
Location of trust or restricted land Legislation governing purchase
(a) Yakima Reservation or within the area ceded by the Treaty of June The Act of December 31, 1970 (Pub. L. 91–627; 84 Stat. 1874; 25
9, 1855 (12 Stat. 1951). U.S.C. 607 (1976)), amending section 7 of the Act of August 9, 1946
(60 Stat. 968).
(b) Warm Springs Reservation or within the area ceded by the Treaty The Act of August 10, 1972 (Pub. L. 92–377; 86 Stat. 530).
of June 25, 1855 (12 Stat. 37).
(c) Nez Perce Indian Reservation or within the area ceded by the Trea- The Act of September 29, 1972 (Pub. L. 92–443; 86 Stat. 744).
ty of June 11, 1855 (12 Stat. 957).
(d) Devils Lake Sioux Reservation for the Spirit Lake Sioux Tribe ......... The Act of January 12, 1983 (Pub. L. 97–459, Section 108, 96 Stat.
2515).
(e) Standing Rock Sioux Reservation ...................................................... The Act of June 17, 1980 (Pub. L. 96–276, section 4(b), 94 Stat. 537).
§ 30.261 What determinations with regard including the value of any life estate appeal through the established
to a tribal purchase option will a judge reserved by a surviving spouse. procedures applicable to the tribe.
make? (b) In making a determination under
(a) In the exercise of probate paragraph (a)(1) of this section, the § 30.262 When will BIA furnish a valuation
following issues will be determined by of a decedent’s interests?
authority, a judge will determine:
(1) The entitlement of a tribe to the official tribal roll, which is binding In all probates, at the earliest possible
purchase a decedent’s interests in trust upon the judge: stage of the proceeding before issuance
(1) Enrollment or refusal of the tribe
or restricted land under the statutes; of a probate decision, BIA must furnish
to enroll a specific individual; and
(2) The entitlement of a surviving (2) Specification of blood quantum, a valuation of the decedent’s interests
spouse to reserve a life estate in one-half where pertinent. when the record reveals to the agency:
of the surviving spouse’s interests that (c) For good cause shown, the judge (a) That the decedent owned interests
have been purchased by a tribe; and may stay the probate proceeding to in land located on one or more of the
(3) The fair market value of such permit an aggrieved party to pursue an reservations designated in § 30.260; and
interests, as determined by an appraisal, enrollment application, grievance, or
(b) That one or more of the probable (b) If a petition for rehearing or a (2) Within 30 days from the date of
heirs or devisees who may receive the demand for hearing has been filed, a the decision on rehearing; or
interests either: tribe may purchase all or a part of the (3) Within 20 days from the date the
(1) Is not enrolled in the tribe of the available interests specified in the tribe exercises its option to purchase
reservation where the land is located; or probate decision within 20 days from available interests.
(2) Does not have the required blood the date of the decision on rehearing or (b) The demand for hearing must:
quantum in the tribe to hold the hearing, whichever is applicable. A tribe
interests against a claim made by the (1) Include a certification that copies
may not, however, claim an interest less
tribe. of the demand have been mailed on the
than the decedent’s total interest in any
(c) The valuation must be made on the same date to the agency and to each
one individual tract.
basis of the fair market value of the (c) Upon failure to timely file a notice interested party; and
property, including fixed of purchase, the right to distribution of (2) State specifically and concisely the
improvements, as of the date of all unclaimed interests will accrue to grounds upon which it is based.
decedent’s death. the heirs or devisees. § 30.269 What notice of the hearing will the
(d) If there is a surviving spouse
§ 30.265 How does a tribe exercise its judge provide?
whose interests may be subject to the
tribal purchase option, the valuation statutory option to purchase? The judge must, upon receiving a
must include the value of a life estate To exercise its option to purchase, the demand for hearing:
based on the life of the surviving spouse tribe must file with the agency a written (a) Set a time and place for the
in one-half of such interests. notice of purchase and resolution or hearing after expiration of the 30-day
(e) BIA must include the valuation other authorizing document, together period fixed for the filing of the demand
report in the probate package submitted with the tribe’s certification that copies for hearing as provided in § 30.268; and
to OHA. Interested parties may examine have been mailed on the same date to (b) Mail a notice of the hearing to all
and copy, at their expense, the valuation the judge and to the affected heirs or interested parties not less than 20 days
report at the agency or the office of the devisees. in advance of the hearing.
judge.
§ 30.266 May a surviving spouse reserve a § 30.270 How will the hearing be
§ 30.263 When is a final decision issued? life estate when a tribe exercises its conducted?
statutory option to purchase?
(a) When a decedent is shown to have (a) At the hearing, each party
owned land interests in any one or more Yes. When the heir or devisee whose
interests are subject to the tribal challenging the tribe’s claim to purchase
of the reservations designated in the interests in question or the valuation
§ 30.260, the probate proceeding relative purchase option is a surviving spouse,
the spouse may reserve a life estate in of the interests as set forth in the
to the determination of heirs, approval
one-half of the interests. valuation report will have the burden of
or disapproval of a will, and the claims
(a) To reserve a life estate, the spouse proving his or her position.
of creditors will first be concluded as
final for the Department in accordance must, within 30 days after the tribe has (b) Upon conclusion of the hearing,
with this part. This decision is referred exercised its option to purchase the the judge will issue a decision that
to in this section as the ‘‘probate interest, file with the agency both: determines all of the issues including,
decision.’’ (1) A written notice to reserve a life but not limited to:
(b) At the formal probate hearing, a estate; and (1) The fair market value of the
finding must be made on the record (2) A certification that copies of the interests purchased by the tribe; and
showing those interests in land, if any, notice have been mailed on the same
(2) Any adjustment of the fair market
that are subject to the tribal purchase date to the judge and the tribe.
(b) Failure to file the notice on time, value made necessary by the surviving
option. spouse’s decision to reserve a life estate
(1) The finding must be included in as required by paragraph (a)(1) of this
section, constitutes a waiver of the in one-half of the interests.
the probate decision setting forth the (c) The decision must specify a right
apparent rights of the tribe as against option to reserve a life estate.
of appeal to the Board of Indian Appeals
affected heirs or devisees and the right § 30.267 What if I disagree with the within 30 days from the date of the
of a surviving spouse whose interests probate decision regarding tribal purchase decision in accordance with §§ 4.320
are subject to the tribal purchase option option? through 4.326 of this subtitle.
to reserve a life estate in one-half of Any interested party aggrieved by the (d) The judge must lodge the complete
such interests. probate decision may, within 30 days record relating to the demand for
(2) If the finding is that there are no from the date of the probate decision, hearing with the LTRO as provided in
interests subject to the tribal purchase file with the judge a written petition for § 30.234, furnish a duplicate record
option, the decision must so state. rehearing in accordance with this part.
(3) A copy of the probate decision, to thereof to the agency, and mail a notice
which must be attached a copy of the § 30.268 May I demand a hearing regarding of such action together with a copy of
valuation report, must be distributed to the tribal purchase option decision? the decision to each interested party.
all interested parties in accordance with Yes. Any interested party aggrieved § 30.271 How must the tribe pay for the
§ 30.237. by the exercise of the tribal purchase interests it purchases?
option to purchase the interests in
§ 30.264 When may a tribe exercise its question or the valuation of the interests (a) A tribe must pay the full fair
statutory option to purchase? as set forth in the valuation report may market value of the interests purchased,
(a) A tribe may purchase all or a part file with the judge a written demand for as set forth in the valuation report or as
of the available interests specified in the hearing. determined after hearing in accordance
probate decision within 60 days of the (a) The demand for hearing must be with § 30.268, whichever is applicable.
probate decision unless a petition for filed by whichever of the following (b) Payment must be made within 2
rehearing has been filed under § 30.238 deadlines is applicable: years from the date of decedent’s death
or a demand for hearing has been filed (1) Within 30 days from the date of or within 1 year from the date of notice
under § 30.268. the probate decision; of purchase, whichever is later.
§ 30.272 What are the Superintendent’s (a) Issue an order that the United the United States in trust for the tribe in
duties upon payment by the tribe? States holds title to the interests in trust accordance with § 30.273, all income
Upon payment by the tribe of the for the tribe; received or accrued from the land
interests purchased, the Superintendent (b) File the complete record, interests purchased by the tribe will be
must: including the decision, with the LTRO credited to the estate and paid to the
as provided in § 30.234; heirs.
(a) Issue a certificate to the judge that (c) Furnish a duplicate copy of the Cross-reference: See 25 CFR part 2 for
payment has been made; and record to the agency; and procedures for appeals to Regional Directors
(b) File with the certificate all (d) Mail a notice of the action together and to the Director of the Bureau of Indian
supporting documents required by the with a copy of the decision to each Affairs.
judge. interested party. Dated: July 26, 2006.
§ 30.274 What happens to income from James E. Cason,
§ 30.273 What action will the judge take to
record title? land interests during pendency of the Associate Deputy Secretary, Department of
probate? the Interior.
After receiving the certificate and During the pendency of the probate [FR Doc. 06–6622 Filed 8–7–06; 8:45 am]
supporting documents, the judge will: and up to the date of transfer of title to BILLING CODE 4310–W7–P

Proposed Rule: Indian Trust Management Reform

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Tuesday,

Current citation New citation Title Remarks

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

Current citation New citation Title Remarks

15.106 Can a probate case be opened when an owner of New section.

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LTRO? and products.

Current citation New citation Title Remarks

Current New citation Title Remarks

152.1 What does this part do? New section.

Current New citation Title Remarks

veyance of the land?

Current New citation Title Remarks

Subpart F—Partitions in Kind

152.501 What lands are covered by this subpart? New section

Subpart G—Mortgages and Deeds of Trust

152.601 What does this subpart do? New section.

Current New citation Title Remarks

Current New citation Title Remarks

Current New citation Title Remarks

Current New citation Title Remarks

hearing contain? and in testate case. Adds provisions for renunci-

Current New citation Title Remarks

4.321 ..................... 4.325 Docketing the appeal. Plain language.

h. Conveyance of Individually Owned under the current 6% discount rate.

Total hours Currently

Total hours Currently

Total ...... .................... .......................................... 76,655 .................... 1,037,433 1,094,514

Total hours Currently

Total ...... ...................................................... 100 .................... 50 0

150.208 ................. Provide written description 10 1 2 20 Adjustment to account for pre-

Responses ..... ................................................. 12,686 .................... .................... 12,696

Total hours Currently

Total ....... ................................................. Responses = .................. 2,103 0

The Department invites comments on comments available for public J. Government-to-Government

15.2 What terms do I need to know? (Determination of Heirs and Approval of

(enrolled or unenrolled) member of the estate of a deceased member of the Five

probate matter. approval process? tribal probate code or the amendment to

of California, is an owner of a trust or under part 150 of this chapter. We will

available if the tribe already owns any held in fee status.

Trust mortgage or deed of trust, we must purchased by a tribe or Indian as a

principal from Indian land and the recording short by a condition.

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

For provisions relating to . . . consult . . .

(1) All proceedings in subpart D .............................................................. §§ 4.200 and 4.201.

§ 4.326 Disposition of the record. recuse himself or herself?

For provisions relating to . . . Consult . . .

(1) All proceedings in part 30 ................................................................... § § 30.100 through 30.102

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

For provisions relating to . . . Consult . . .

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

probate matters and who is responsible possessed of trust or restricted property;

the same parcel of land;

Location of trust or restricted land Legislation governing purchase

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