# Indian Trust Management Reform > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A06-6622 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** August 8, 2006 - **Citation:** 71 FR 45174 ## Text DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs 25 CFR Parts 15, 18, 150, 152, and 179 Office of the Secretary 43 CFR Parts 4 and 30 RIN 1076-AE59 Indian Trust Management Reform AGENCY: Bureau of Indian Affairs, Office of the Secretary, Interior. ACTION: Proposed rule. SUMMARY: The Bureau of Indian Affairs (BIA) and the Office of the Secretary propose to amend several of their regulations related to Indian trust management to further fulfill the Secretary's fiduciary responsibilities to federally recognized tribes and individual Indians and to meet the Indian trust management policies articulated by Congress in the Indian Land Consolidation Act (ILCA), as amended by the American Indian Probate Reform Act of 2004 (AIPRA). These amendments address Indian trust management issues in the areas of probate, probate hearings and appeals, tribal probate codes, life estates and future interests in Indian land, the Indian land title of record; and conveyances of trust or restricted land. There is also an “Application for Consolidation by Sale” form that is associated with one of these amendments. DATES: Please submit your comments by October 10, 2006. ADDRESSES: You may submit comments, identified by the number 1076-AE59, by any of the following methods: —Federal rulemaking portal: http://www.regulations.gov. Follow the instructions for submitting comments. —Web site at http://www.doitrustregs.com. —E-mail: Michele_F_Singer@ios.doi.gov. Include the number 1076-AE59 in the subject line of the message. —Fax: (202) 208-5320. Include the number 1076-AE59 in the subject line of the message. —Mail: U.S. Department of the Interior, 1849 C Street, NW., Mail Stop 4141, Washington, DC 20240 —Hand delivery: Michele Singer, U.S. Department of the Interior, 1849 C Street, NW., Washington, DC 20240. Comments on the information collection burdens, including comments on or requests for copies of the “Application for Consolidation by Sale” form, are separate from those on the substance of the rule. Send comments on the information collection burdens to: Interior Desk Officer 1076-AE59, Office of Management and Budget, e-mail: oira_docket@omb.eop.gov; or 202/395-6566 (fax). Please also send a copy of your comments to BIA at the location specified under the heading ADDRESSES . FOR FURTHER INFORMATION CONTACT: Michele Singer, Counselor to the Assistant Secretary—Indian Affairs, Department of the Interior, Bureau of Indian Affairs, 1849 C Street NW., Mail Stop 4141, Washington, DC 20240, telephone (202) 273-4680. SUPPLEMENTARY INFORMATION: I. Statutory Authority II. Background A. History of the Rule B. The Need for this Proposed Rulemaking C. Development of Proposed Reguatory Language D. Status of Other Indian Trust Management Reform Regulations III. Overview of Proposed Rule IV. Part-by-Part Analysis A. 25 CFR Part 15 B. 25 CFR Part 18 C. 25 CFR Part 150 D. 25 CFR Part 152 E. 25 CFR Part 179 F. 43 CFR Part 4 G. 43 CFR Part 30 V. Public Comments A. Comments Received Prior to This Publication B. Directions for Submitting Comments VI. Procedural Requirements A. Regulatory Planning and Review (Executive Order 12866) B. Regulatory Flexibility Act C. Small Business Regulatory Enforcement and Fairness Act D. Unfunded Mandates Reform Act of 1995 E. Governmental Actions and Interference with Constitutionally Protected Property Rights (Executive Order 12630) F. Federalism (Executive Order 13132) G. Civil Justice Reform (Executive Order 12988) H. Paperwork Reduction Act I. National Environmental Policy Act (NEPA) J. Government-to-Government Relationships with Tribes (Executive Order 13175) K. Energy Effects (Executive Order 13211) I. Statutory Authority Regulatory amendments to these parts are proposed under the general authority of the Trust Fund Management Reform Act of 1994, 25 U.S.C. 4021 et seq. , and the Indian Land Consolidation Act of 2000 (ILCA) as amended by the American Indian Probate Reform Act of 2004 (AIPRA), 25 U.S.C. 2201 et seq. The following table provides additional statutory authority specific to each CFR part. 25 CFR part 15 5 U.S.C. 301; 25 U.S.C. 2, 9, 372-74, 410; 44 U.S.C. 3101 et seq. 25 CFR part 18 NEW-Tribal Probate Codes 5 U.S.C. 301; 25 U.S.C. 2, 9, 372-74, 410; 44 U.S.C. 3101 et seq. ; Pub. L. 108-374 (American Indian Probate Reform Act of 2004). 25 CFR part 150 Act of June 30, 1834 (4 Stat. 738; 25 U.S.C. 9). Act of July 26, 1892 (27 Stat. 272; 25 U.S.C. 5). Reorganization Plan No. 3 of 1950 approved June 20, 1949 (64 Stat. 1262). (Act of April 26, 1906 (34 Stat. 137); Act of May 27, 1908 (35 Stat. 312); Act of August 1, 1914 (38 Stat. 582, 598) deals specifically with land records of the Five Civilized Tribes. Act of February 14, 1920 (41 Stat. 415) amended March 1, 1933 (47 Stat. 1417; 25 U.S.C. 413); 5 U.S.C. 552a; and 31 U.S.C. 9701. 25 CFR part 152 R.S. 161; 5 U.S.C. 301. Interpret or apply sec. 7, 32 Stat. 275, 34 Stat. 1018, sec. 1, 35 Stat. 444, sec. 1 and 2, 36 Stat. 855, as amended, 856, as amended, sec. 17, 39 Stat. 127, 40 Stat. 579, 62 Stat. 236, sec. 2, 40 Stat. 606, 68 Stat. 358, 69 Stat. 666: 25 U.S.C. 378, 379, 405, 404, 372, 373, 483, 355, unless otherwise noted. 25 CFR part 179 86 Stat. 530; 86 Stat. 744; 94 Stat. 537; 96 Stat. 2515; 25 U.S.C. 2, 9, 372, 373, 487, 607, and 2201-11; Pub. L. 108-374 (American Indian Probate Reform Act of 2004). 43 CFR part 4 5 U.S.C. 301; 43 U.S.C. 1201. 43 CFR part 30 NEW—Probate Hearing Procedures 5 U.S.C. 301; 43 U.S.C. 1201. II. Background This rulemaking is a result of a collaborative, multi-year undertaking to identify a comprehensive strategy for improving Indian trust management. The Department of the Interior manages Indian trust assets in accordance with its fiduciary trust relationship with tribes and individual Indians. The term “tribes” is used in this preamble to refer to Federally recognized tribes. The purpose of today's proposed rulemaking is to allow the Department of the Interior to better meet its fiduciary trust responsibilities and to carry out the policies established by Congress to strengthen tribal sovereignty. This rulemaking will provide the Department with the tools to more effectively and consistently manage trust assets and better serve its trust beneficiaries ( i.e. , Indian tribes and individual Indians). A. History of the Rule The Department of the Interior has been examining ways to better meet its fiduciary trust responsibilities since 1994, when Congress passed the Trust Fund Management Reform Act. Throughout this time, the Department has sought the participation and input of tribal leaders and individual Indian beneficiaries to identify ways in which the Department can better serve its beneficiaries. In July 2001, the Secretary of the Interior (Secretary) issued Secretarial Orders 3231 and 3232. These orders created the Office of Historical Trust Accounting (OHTA) to perform historical accounting of trust assets and created a temporary Office of the Indian Trust Transition (OITT), which was charged with reorganizing the agency to better meet beneficiaries” needs. These Secretarial Orders also stated the Secretary's policy to take a more coordinated approach to ensure the overall success of trust reform. In accordance with this policy, the Department reevaluated its approach to trust reform and, in January 2002, embarked on an examination and reengineering of its Indian trust management processes. This effort differed from prior trust reform efforts because it took a comprehensive approach to trust reform, linking individual trust reform issues to an overall strategy. To ensure that the strategy fully considered tribal concerns, the Department assembled a Joint Task Force of tribal representatives and representatives from the Department. From members of this Joint Task Force, a subcommittee of both tribal representatives and Department representatives was formed. The subcommittee met regularly to review the “As-Is” processes of the way major trust functions were performed at that time. From this “As-Is” model, the subcommittee identified business goals and objectives the Department should meet in fulfilling its trust responsibilities and providing improved services to trust beneficiaries. It then developed the overall strategy to meet those goals and objectives, documented as the Comprehensive Trust Management (CTM) plan. The CTM laid the groundwork for trust reform by providing strategic direction for development of the “To-Be” model, known as the Fiduciary Trust Model (FTM). The FTM redesigns trust processes into more efficient, consistent, integrated, and fiscally responsible business processes. In developing the FTM, the team incorporated years of Departmental consultation with tribes. The Department adopted the FTM in December 2004 to guide trust reform. Together with Indian affairs policies, the FTM forms the basis of today's rulemaking. B. The Need for This Proposed Rulemaking Since adopting the FTM, the Department has formed an FTM Implementation Team with tribal representatives. The FTM Implementation Team is leading internal organizational changes for improving performance and accountability in management of the trust. At the beginning of the reengineering process, the Joint Task Force had anticipated that regulatory changes would be necessary to fully implement trust reform. The Team has since determined, and the Secretary has confirmed, that certain regulatory changes are indeed needed to enable the Department to fully implement the FTM. Today's proposed rule includes many of these necessary regulatory changes. Additionally, Congress enacted the American Indian Probate Reform Act of 2004. AIPRA amends ILCA to better meet the trust reform goals for land consolidation articulated in ILCA. Regulatory changes authorized by AIPRA are included in this proposed rule. C. Development of Proposed Regulatory Language This proposed rulemaking encompasses tribal and Departmental representatives’ efforts on the Joint Task Force, as well as the efforts of tribal representatives who have provided comments throughout the trust reform process. These efforts guided in-house teams in drafting the specific regulatory language included in this proposed rulemaking. The in-house teams consisted of Federal personnel from Department headquarters and the field, and included program officers and Department attorneys possessing extensive expertise in probate, land titles and records, acquisition and conveyance, leasing and grazing, and administrative appeals. On December 27, 2005, the Department shared advance copies of the proposed regulatory language (identified as “preliminary drafts” throughout this preamble) with leaders of each Federally recognized tribal government, as well as additional contacts in Indian country, for their input and recommendations. The Department has also presented the preliminary drafts and obtained the input of tribes at two formal consultation meetings: one in Albuquerque, New Mexico on February 14-15, 2006, and one in Portland, Oregon on March 29, 2006. Comments received during these consultations and in the time leading up to this publication have identified several issues that the Department considered in revising the preliminary drafts for publication as a proposed rule. In accordance with the government-to-government relationship with tribes, formal consultations are also being scheduled to take place during the comment period that follows this publication in the Federal Register to facilitate an informed final rule. See Section IV, Public Comments, for details on upcoming consultations. D. Status of Other Indian Trust Management Reform Regulations The Department is also developing regulatory amendments to land acquisitions (25 CFR part 151), leasing (25 CFR part 162), and grazing (25 CFR part 166), and developing draft regulatory language addressing trust fund accounting and appeals (new CFR part), unclaimed moneys/whereabouts unknown (new CFR part), and fees for service (new CFR part). Based on input received during the February 14-15, 2006, Albuquerque tribal consultation session, the Department has determined that these regulations require additional work before publication as a proposed rule. The Department plans to promulgate these additional regulations at some point in the future. Together, these regulatory changes will provide the Department with the tools it needs to better serve beneficiaries and will standardize procedures for consistent execution of fiduciary responsibilities across BIA Regions. III. Overview of Proposed Rule The proposed rule amends various parts of the CFR to further implement Indian trust management reform and meet the policies expressed by Congress in ILCA, as amended by AIPRA. Together, these amendments form an integrated approach to Indian trust management related to probate, land records and title documents, and conveyances that allow the Department to better meet the needs of its beneficiaries. The Department has revised many of these regulations, in accordance with the Plain Language Initiative (63 FR 31885 (June 10, 1998)) to facilitate ease of use and public comprehension. In addition to making plain language revisions, amendments revise the regulations to: • Incorporate AIPRA changes to probate: AIPRA created a uniform probate code to standardize intestate succession rules for trust and restricted property. The uniform probate code reinforces tribal sovereignty by eliminating the application of state laws in the probate of trust and restricted assets while deferring to approved tribal probate codes. AIPRA also established new mechanisms for consolidating fractionated interests at probate and through sale of highly fractionated tracts. The proposed amendments to probate regulations would implement AIPRA's provisions by requiring the additional information needed to determine heirs and devisees to be included in the probate file, and by establishing the procedures for directional disclaimers, purchases at probate and consolidation agreements. These regulations continue to refer all probate cases to OHA. The amendments streamline the OHA process by shortening deadlines to more reasonable time periods. Amendments to life estate provisions reflect AIPRA's change in the valuation of a life estate to be “without regard to waste” and base the valuation on the four-year average Single Life Factor used by the U.S. Internal Revenue Service in Table S of the 7520 rate schedule, without regard to gender. • Promote consolidation (reduce fractionation) of interests: Allotments owned by Indians have become increasingly fractionated with the probate of each generation, resulting in the division of the allotment into smaller and smaller interests. These amendments meet the policy expressed by Congress to reduce fractionation ( i.e. , the exponential increase in the number of ownership interests in a given parcel of land) of tribal and individual Indian interests in trust and restricted property through the use of several tools. These tools include the opportunities for tribes to establish a tribal land consolidation plan; purchase interests in land within their respective jurisdictions when offered for negotiated sale, gift, or exchange; make a tribal tract purchase ( i.e. , obtain fractionated interests of non-consenting trust and restricted owners under certain circumstances); and unify ownership and consolidate interests in a tract through partition. The amendments allow both tribes and individual Indians to obtain highly fractionated interests through a new mechanism, created by AIPRA: consolidation by sale (called “partition of highly fractionated lands” in AIPRA). Additionally, the new AIPRA mechanisms being incorporated in probate regulations will offer opportunities to reduce fractionation through the distribution of probate property. • Improve service to beneficiaries: Amendments to the Land Titles and Records Office (LTRO) regulations will update and standardize LTRO title practices and recordation to ensure the Secretary is able to accurately track and record accounting of trust and restricted interest owners, allowing the Secretary to better serve the beneficiaries. Amendments to the probate process are aimed at facilitating the process to reduce the probate backlog and better serve beneficiaries. By clarifying the requirements and processes for probate, approval of tribal probate codes, obtaining LTRO services and products, and conveying trust and restricted property, the Department improves communication and transparency, allowing better service to beneficiaries. The Department is committed to fully explaining both the purpose and intended effects of these regulations in this preamble. More detailed explanations of each part are provided below, followed by summaries of comments received during tribal consultations on the preliminary drafts of these regulations. The Department welcomes any questions or comments requesting clarification of these parts, as well as additional comments. Additionally, upon finalization of any of these regulations, the Department plans to develop training and other explanatory materials, where appropriate, to facilitate transparency in implementation of these regulations. IV. Part-by-Part Analysis The following sections provide a description of the amendments with respect to each CFR part and provide distribution tables listing what current CFR sections are proposed for change, the new ( i.e. , proposed) CFR section, and a description of the proposed changes. Because this proposed rule incorporates changes made to the preliminary drafts, which were distributed to tribes in December 2005, the following part-by-part analysis includes a discussion of major changes made to each preliminary draft of the CFR part in response to comments. A. 25 CFR Part 15 The purpose of this part is to describe the authorities, policies and procedures the BIA (or tribe that has contracted or compacted to fulfill probate functions) uses to prepare a probate file for an Indian decedent's trust estate, except for restricted land derived from allotments made to members of the Five Civilized Tribes (Cherokee, Choctaw, Chickasaw, Creek and Seminole) in Oklahoma. Amendments to this part revise several subsections to ensure that the probate file delivered to OHA for adjudication is as complete as possible. By requiring a certification by BIA that they have examined certain sources of information and that the file is as complete as possible based on those sources of information, the amendments will prevent multiple transfers of the probate file between BIA and OHA, facilitating the process. Additional changes to the records requirements, such as deleting the requirement for a birth certificate, are also intended to facilitate the probate process. The amendments ensure that information is included in the probate file to determine whether heirs and devisees meet the AIPRA definition of “Indian.” The amendments also incorporate definitions regarding AIPRA's new methods for consolidating interests at probate: • Consolidation agreements, which are agreements by the decedent's heirs and devisees to consolidate their inherited/devised interests in trust and restricted land or consolidate their inherited/devised interests in land with other interests they already own in trust and restricted land; and • Purchase options at probate, which allow eligible purchasers to purchase or exchange a decedent's interest in trust or restricted land. Amendments to this part ensure that the probate file contains information necessary for implementation of statutory solutions to fractionation set out in 43 CFR part 4, which addresses OHA probate hearings. Part 15 prescribes what must be included in a probate package and how it will be compiled. Changes From Preliminary Draft Several tribal commenters questioned why 25 CFR part 15 and 43 CFR part 4, which both address the probate process, are in separate CFR titles. The Department has determined that because these two parts address different agencies—25 CFR part 15 addresses BIA preparation of the probate file, and 43 CFR part 4 addresses adjudication of the probate file once OHA receives it from BIA—these parts are best kept in their respective titles. Several commenters suggested that the definitions in both 25 CFR part 15 and 43 CFR part 4 should track the definitions as set out in ILCA, as amended by AIPRA. The Department has reviewed the regulatory definitions, and amended them as appropriate to ensure that they are consistent with AIPRA and with 43 CFR parts 4, 30. The Department examined and changed terms, as appropriate, to ensure consistency with definition of terms in 43 CFR parts 4, 30. The Department also amended other terminology as a result of issues raised by tribal commenters: for example, it changed “trust financial assets” and “cash assets” to “trust personalty” to encompass both cash and securities, and it changed “beneficiaries” to “devisees,” which is a more precise term including only those who receive under a will. In section 15.8, the Department clarified what is meant by a “self-proved will.” In response to tribal comments, the Department also significantly amended section 15.14. In the preliminary draft, this section had provided that, pending probate, the Secretary could take custody and control of the estate and take any action he or she determined to be necessary for the benefit of the estate, including sale of the land. The version of this section being proposed today instead provides limited emergency actions that BIA may take when assets in an estate may be significantly diminished or destroyed while the probate is pending. Each of the emergency actions require a request to or hearing before OHA, so no unilateral action may be taken to sell land pending probate under this provision. At least one tribal commenter objected to the last provision in section 15.106 of the preliminary draft, allowing the Secretary to request any additional information in support of the probate file. The Department has deleted the provision allowing the Secretary to require additional information in support of the probate file. The Department also clarified when claims against an estate may be filed and the deadline for filing such claims in section 15.202. Distribution Table—25 CFR Part 15 The following distribution table indicates where each of the current regulatory sections in 25 CFR part 15 is located in the proposed 25 CFR part 15. Current citation New citation Title Remarks 15.1 15.1 What is the purpose of this part? No change. 15.2 15.2 What terms do I need to know? Additional definitions. 15.3 Who can make a will disposing of trust or restricted land or trust personalty? New section. 15.4 What are the requirements for my will? New section. 15.5 Can I revoke my will? New section. 15.6 Can my will be deemed revoked by the operation of the law of any state? New section. 15.7 What is a self-proved will? New section. 15.8 Can I make my will, codicil, or revocation self-proved? New section. 15.9 Do affidavits for my self-proved will, codicil, or revocation have to be in a certain format? New section. 15.3 15.10 Will the Secretary probate all the land or assets in an estate? Clarifies that the Secretary will probate only the trust or restricted property in an estate. 15.4 15.11 How does the probate process work? Administrative changes. 15.12 What happens if assets in a trust estate may be diminished or destroyed while the probate is pending? New section. 15.101 15.103 How do I begin the probate process? Clarifies whom to contact at BIA to inform of a death. 15.104 Does BIA need a death certificate to prepare a probate file? Clarifies that a death certificate should be provided and lists information and documents that must be provided if no death certificate is available. 15.102 15.102 Who may notify BIA of a death? Plain language. 15.103 15.101 When should I notify BIA of a death? Plain language. 15.104, 15.105 15.105 What other documents does BIA need to prepare a probate file? Clarifies that certain documents may come from an authority other than a court. Adds requirement for: orders requiring payment of spousal support; identification of person or entity in whose favor an interest is renounced; court judgments regarding creditor claims; and place of enrollment and tribal enrollment or census number of the decedent and potential heirs and beneficiaries. Deletes requirement for birth certificate. 15.106 15.201 Can I get funds from the decedent's IIM account for funeral services? Plain language. 15.107 15.107 Who prepares a probate file? Incorporates new “probate staff” definition. 15.108 15.108 If the decedent was not an enrolled member of a tribe or was a member of more than one tribe, who prepares the probate file? Redesignated. Plain language. 15.106 Can a probate case be opened when an owner of an interest has been absent? New section. 15.201 15.301 What will BIA do with the documents that I provide? Clarifies that BIA will also examine other documents and information (beyond those provided) to prepare a complete probate file and will transfer the probate file to OHA. 15.202 15.202 If the decedent owed me money, how do I file a claim against the estate? Adds requirements to provide certain additional information in support of claim. Changes deadline for filing a claim to the conclusion of the first hearing rather than 60 days of verification of death. 15.203 15.302 What items must BIA include in the probate file? Clarifies what the certified inventory of trust or restricted real property should contain. Adds requirements for supporting documents. 15.303 When is a probate file complete? New section. 15.301 15.401 What happens after BIA prepares the probate file? Redesignated. Deletes notification to interested parties. 15.302 15.402 What happens after the probate file is referred to OHA? Adds provisions describing how BIA will handle claims it receives after it refers the probate file to OHA. 15.303 15.403 What happens after the probate decision is made? Establishes a 30-day time period to file a written request for de novo review, a request for rehearing with the OHA deciding official, or an appeal. Establishes that BIA will not pay claims, transfer title, or distribute assets pending a de novo review, rehearing, or appeal. 15.401 15.501 How can I find out the status of a probate? Clarifies that interested parties may contact the BIA agency or regional office. 15.402 15.502 Who owns the records associated with this part? Clarifies that records made by or on behalf of the United States are owned by the United States. 15.403 15.503 How must records associated with this part be preserved? Redesignated. Plain language. 15.504 Who may inspect these records? Redesignated. Plain language. 15.505 What information must tribes provide BIA to complete the probate file? Establishes that tribes must provide certain information when necessary to complete a probate file. 15.506 How does the Paperwork Reduction Act affect this part? New section. B. 25 CFR Part 18 [NEW]—Tribal Probate Codes This new CFR part addresses the process for obtaining Secretarial approval of a tribal probate code and lists factors the Secretary will consider in reviewing the tribal probate code for approval. While tribes have had the authority to adopt their own tribal probate codes governing descent and distribution of trust and restricted lands located within the tribes’ respective reservations or otherwise subject to the tribes’ jurisdiction, part 18 clarifies that a tribe must obtain Secretarial approval of the code. This part lists the factors the Secretary will consider in reviewing a tribal probate code and establishes when an approved code, repeal, or amendment becomes effective. Upon approval, this part requires the tribe to notify tribal members of the tribal probate code. Changes From Preliminary Draft The Department made several plain language changes to the preliminary draft, which has resulted in combining certain sections and rearranging the sections to some degree. The Department added a new subsection (b) to section 18.1 to clarify that a tribal probate code may provide for a single heir rule that differs from the one provided in AIPRA. The Department also clarified section 18.8(b) (section 18.9 in the preliminary draft) to provide that a tribal probate code or amendment will be applied to the estates of decedents who die on or after the effective date, rather than the date of approval, of the tribal probate code or amendment. Finally, tribal commenters objected to section 18.12 of the preliminary draft, which provided how tribes should notify their members of a tribal probate code or amendment, as an inappropriate incursion into tribal sovereignty. The Department has deleted this section in its entirety. Note: A distribution table is not included here because these provisions are entirely new. C. 25 CFR Part 150—Indian Land Record of Title The LTRO determines, maintains, and certifies the title status of Indian land and provides various land title products and services to individual Indians, tribes, and other members of the public for land held in trust or restricted status by the United States. Trust status means that title is held by the United States in trust for the benefit of an individual Indian or tribe. Restricted status means ownership of the property is subject to Federal restrictions against alienation and/or encumbrance. The proposed rule replaces 25 CFR part 150, Land Records and Title Documents, in its entirety, to provide clarification of LTRO's procedures and increase the ability of the LTRO to provide services and products to Indians, tribes, and the public comparable to those provided by state and local land records offices. The changes are described subpart by subpart, below. Subpart A of the proposed rule, Purpose, Definitions, and Public Information, clarifies that the Department will provide access to the information in the Indian Land Record of Title to individual Indians, tribes, and the public, except in those instances where access would violate law or policy restricting access to such records. The definition of “Indian land” is clarified to include only lands in trust or restricted status and Federal government-owned land that is under the jurisdiction of the BIA, and not land held in fee by Indians or fee land subject to the rights, occupancy, and use of Indians. Subpart B of the proposed rule, The Indian Land Record of Title Designation as the Official Record of Indian Land, designates the Indian Land Record of Title as the official record of title instruments affecting Indian land. The proposed rule clarifies that constructive notice of the existence of the title instrument is provided by recording the instrument in the Indian Land Record of Title. Recording instruments with other Federal or state offices does not provide constructive notice with regard to Indian land. Subpart C of the proposed rule, LTRO Procedures and Requirements to Record Instruments in the Indian Land Record of Title, designates the LTRO as the organization within the Federal government that has the responsibility to maintain the Indian Land Record of Title. This subpart describes the LTRO process for receiving and recording title and the process for correcting an error or omission in an LTRO product or service. Subpart D of the proposed rule, Services and Products of the LTRO, describes the types of services and products offered by the LTRO. Subpart D also proposes charging fees to certain parties for the services and products provided by LTRO. The proposed fees implement the authority contained in 25 U.S.C. 413 and address a Congressional directive, in 31 U.S.C. 9701, for agencies to begin charging fees that are fair and reasonable based upon the value of the service provided by the Federal office. Under 25 U.S.C. 14b, the Secretary may order that such funds be directed to the appropriation account for the LTRO. A fee schedule will be published as a notice separate from this proposed rule. The proposed rule specifies exceptions to the fee. These proposed provisions will provide a greater benefit to individual Indians, tribes, and the public through clarification of LTRO procedures and will improve LTRO's ability to serve beneficiaries. Changes From Preliminary Draft Since distribution of the preliminary draft, the Department made several changes to part 150. For example, the Department added cross-references to 43 CFR part 30 in proposed sections 150.206 and 150.207, relating to corrections of final probate records. The proposed part 150 also moves two sections regarding how to notify the LTRO of an error or omission in a service or product from subpart D to subpart C, for clarity. (See proposed section 150.208). The Department deleted the section in the preliminary draft, “What certified products does the LTRO produce,” and added the section, “What services and products may I order from the LTRO.” Additional changes and issues are discussed below. Terminology: The Department added language to clarify several definitions, including “interest,” “Land Titles and Records Office,” “title,” and “title instrument.” The Department also rewrote the definition for “tribe” to be consistent with existing regulatory definitions for this term. Throughout the rule, the Department has modified the terminology to clarify that the rights of the individual beneficiary and tribe relate to an interest in trust (see also 25 CFR part 179). Effect on Tribes that Compact or Contract LTRO Functions: Several tribal commenters requested clarification on how this rule affects tribes that perform LTRO functions under a contract or compact. Records maintained by tribes under such a contract or compact are part of the Indian Land Record of Title and must be maintained under the same standards and policies. As such, the regulation includes compact and contract tribes under the definition of the “Land Titles and Records Office” for grammatical and textual convenience purposes. The inclusion of compact and contract tribes under this definition is not intended to reflect a limitation on the sovereignty of these tribes. Certain functions performed by the LTRO are inherently Federal functions and can only be performed by a government agency. The inclusion of the compact and contract tribes in this definition is not intended to authorize any such tribe to perform any inherently Federal function. Access to the Indian Land Record of Title: Several Indian commenters raised the issue of access to LTRO information. Specifically, these commenters pointed out that they are being denied access to LTRO information, sometimes under the auspices of the Privacy Act. The rule clarifies that the Indian Land Record of Title is a public record but that access is subject to the Privacy Act, Freedom of Information Act, and other law or policy restricting access. In some instances, portions of a copy of the title instruments must be redacted under the Privacy Act to eliminate personal information not otherwise included in the Indian Land Record of Title. Additionally, the Department may restrict access to reports prepared for the Secretary. The LTRO performs functions other than entering information into the Indian Land Record of Title and providing copies of maps and title instruments—the LTRO also takes the information from the record, reviews and examines and draws conclusions about it in preparation of a report. Where the LTRO prepares a report for the benefit of the Secretary, the Secretary has the discretion to restrict access to the report. For example, the public may not obtain a copy of the Probate Inventory Report until OHA opens the probate case. While access to the Indian Land Record of Title may be restricted by the Freedom of Information Act, Privacy Act, or other law or policy, the Department believes that in most cases, neither law or policy will restrict access to these records by individual Indians or tribes. Generally, information included in the Indian Land Record of Title will be available to the public without restriction. The Department has also clarified that owners of an interest in trust or restricted land within the same reservation, the tribe or any person that is leasing, using, or consolidating, or is applying to lease, use, or consolidate, such trust or restricted land or the interest in trust or restricted lands may obtain the following information without regard to the Privacy Act and any exemption contained in the Freedom of Information Act: The names, mailing addresses, information on the location of the parcel, and percentage of the parcel owned by each individual. Who Approves Title Instruments: The Department has deleted as unnecessary the section regarding who the Federal officials are that approve title instruments. Fees: Based on input received on the preliminary drafts, the Department recognizes that there is strong opposition to requiring Indians and tribes to pay for LTRO services and products. Several tribal commenters also expressed a preference for charging fees exclusively to non-Indians because they believe that providing LTRO products and services to non-Indians without charge burdens the LTRO and diverts monies from other Indian and tribal programs. The Department welcomes continued feedback on the proposal for charging fees for LTRO products and services. The Department will continue to review ways to maximize the efficiency and effectiveness of the products and services provided by the LTRO and consider whether charging fees can assist with this effort. The Department has removed the fee schedule from the text of the regulation and will publish it in a separate notice. This will allow the Department to revise the fees without having to amend the rule. LTRO Response Time: During tribal consultations, several tribal commenters expressed their frustration at what they characterized as the slowness of the LTRO in responding to requests to provide services and products. The Department is currently undergoing implementation of a technological system that will provide a centralized database of the Indian Land Record of Title. It is the Department's belief that this system will increase the LTRO's ability to respond to requests for products and services in a more timely manner. Several tribal commenters suggested imposing timelines on the LTRO to respond to requests. Due to the complexity and variety of title instruments and reports generated from the information in the Indian Land Record of Title, the Department is unable to establish a baseline time period. Additionally, the Department believes that establishing time frames within this regulation would limit the flexibility to amend those time frames to reflect changes in processes. Distribution Table—25 CFR Part 150 The following distribution table indicates where each of the current regulatory sections in 25 CFR part 150 is located in the proposed 25 CFR part 150. Current citation New citation Title Remarks 150.1 150.1 What is the purpose of this part? Clarifies purpose by expanding on the services and products LTRO provides. 150.2 150.2 What terms do I need to know? Adds several definitions for clarification. 150.4 Do I have to be an Indian or a tribe to obtain products or services from the Lands Titles and Records Office? New section. 150.101 Must all title instruments affecting Indian land be recorded in the Indian Land Record of Title? Designates the Indian Land Record of title as the official record of title instruments affecting Indian land. Clarifies that recording with the Indian Land Record of Title serves as constructive notice that the title instrument exists. 150.102 Do I have to check with any other governmental office to find title instruments to Indian land? Clarifies that the Indian Record of Land Title is the source of all recorded instruments. 150.3 150.201 Who maintains the Indian Land Record of Title? Establishes the LTRO as the office responsible for maintaining the Indian Land Record of Title. 150.4 150.202 Where is the LTRO located? Indicates that the LTRO has locations throughout the United States, and that Bureau offices maintain contact information. 150.5 Deleted. 150.6 150.203 Who submits the title instruments for recording? Clarifies that BIA and other government offices may submit title documents for recording. Deletes specific reference to the Administrative Law Judge submitting probate documents. 150.204 What does the LTRO do with the instruments that it receives? Restates the steps LTRO takes when it receives documents. 150.205 What are the minimum requirements for recording a title instrument? Clarifies requirements for recording. 150.7 150.206 What if the LTRO discovers a defect or error in a document? Specifies LTRO procedures to address defects or errors discovered after recording. 150.207 What if a defect or error in a final probate record cannot be corrected? Restates requirement for LTRO notification to deciding official for non-clerical errors in probate records. Establishes that the corrected document will be filed in the Indian Land Record of Title. Deletes reference to “Superintendent” and Administrative Law Judges. 150.208 How do I correct an error or omission in a title instrument or LTRO product or service? New section. 150.209 What instruments qualify for recording in with the LTRO? New section. 150.210 Does the LTRO maintain the original title instruments? New section. 150.211 May I obtain a copy of the title instrument from the LTRO? New section. 150.301 What services and products may I order from the LTRO? New section. 150.8 150.302 How do I order services and products from the LTRO? Discusses how to order any of LTRO's services and products. 150.303 Does BIA charge fees for any of the services provided by, or products produced by, the LTRO? New section. 150.304 What will the LTRO do if the instrument contains information that is privileged or protected? New section. 150.305 How does the Paperwork Reduction Act affect this part? New section. 150.9 Deleted. 150.10 150.212 Is there any benefit of obtaining a certified copy of the title? Restates that a certified copy can be used in place of an original in court or elsewhere. 150.11 150.3 When can I see land and title information from the Indian Land Record of Title? Clarifies Department policy to allow public access to the Indian Land Record of Title. Deletes provision regarding nondisclosure of monetary consideration and provision. D. 25 CFR Part 152—Conveyances This part establishes the authorities, policy, and procedures governing the conveyance of trust or restricted land. Amendments reorganize this part to clarify the different procedures and requirements applicable to each type of conveyance. The reorganized sections incorporate statutory solutions aimed at reducing fractionation of interests. One such solution, consolidation by sale, is newly established by AIPRA. Consolidation by sale allows one or more eligible bidders to consolidate highly fractionated land by buying the highly fractionated interests at fair market value through a sale conducted by the Secretary. The amendments also: • Provide instances where consent of the trust or restricted co-owner is not required to convey a fractional interest, making it easier to consolidate interests; • Allow conveyance of land within a tribe's jurisdiction without tribal consent where the grantor owns 100% of the tract; • Allow tribes to purchase fractional interests of non-consenting trust and restricted owners at fair market value (tribal tract purchases); and • Clarify that the Secretary will have a lien on income derived from any interest purchased for a tribe under the Indian Land Consolidation program in the amount of the purchase price, until the lien is satisfied or removed by the Secretary. The reorganization divides this part into various subparts. Proposed subpart A, General Provisions, provides relevant definitions, describes to whom the Secretary will provide ownership information related to conveyance in this part, and establishes the scope of the regulations. Subpart B, Sales and Exchanges of Tribal Trust or Restricted Land, addresses sales and exchanges of tribal land pursuant to an approved tribal consolidation plan and certain exchanges of tribal land. This subpart describes what a tribal consolidation plan is, how to obtain approval of such a plan, and how to obtain approval of a sale or exchange in the absence of tribal consolidation plan. Subpart C, Negotiated Sales, Gifts, and Exchanges of Individually Owned Lands, addresses conveyances of individually owned trust or restricted lands. This subpart provides for a tribal option to purchase any trust or restricted interests proposed for sale, gift, or exchange to unrestricted fee status. Subpart D, Tribal Parcel Purchase, allows tribes to purchase tracts of trust or restricted lands where the tribe either owns at least 50% of the undivided interests in the tract or has obtained the consent of the co-owners of at least 50% of the undivided interests in the tract, subject to the right of an individual owner in possession of the tract to preempt the purchase. Subpart E, Consolidation by Sale of Highly Fractionated Parcels, incorporates the new consolidation mechanism authorized by AIPRA. Consolidation by sale allows eligible bidders to consolidate interests in highly fractionated parcels where certain consents are obtained. This subpart also provides the procedures for conducting the sale by public auction or sealed bid. There is an “Application for Consolidation by Sale” form associated with this subpart. To obtain a copy of the information collection request submission to OMB or a copy of the form, send your request to the address related to information collections listed in ADDRESSES. Subpart F, Partitions in Kind, authorizes the Secretary to subdivide trust and restricted land with multiple owners into smaller tracts in which the interests of the owners are unified or consolidated. This subpart allows any owner of a fractionated interest to apply to the Secretary for partition. Subpart G, Mortgages and Deeds of Trust, allows the Secretary to approve mortgages or deeds of trust encumbering individually owned land under certain circumstances. Much of the current regulatory language is redesignated into subpart H, Patents in Fee, Certificates of Competency, and Orders Removing Restrictions, and subpart I, Special Provisions applicable to Osage and the Five Civilized Tribes. Changes From Preliminary Draft The Department made several changes to the preliminary draft of 25 CFR part 152. Many of the changes are intended to clarify and make terminology consistent. Definitions: The Department deleted the definitions for “competent” and “contiguous” and added definitions for “fair market value,” “family farm,” and “owner(s).” The Department revised the definition for “Indian.” Land Consolidation Plans: The preliminary draft had included a section stating that a tribal land consolidation plan may identify for purchase only lands contiguous to the reservation or otherwise subject to tribal jurisdiction. Several tribal commenters objected to the provision stating that the tribal land consolidation plan may identify for purchase only those lands that are located within or contiguous to the tribe's reservation boundaries, or otherwise subject to tribal jurisdiction. One tribal commenter stated that because it does not have fixed exterior reservation boundaries, this provision would prevent it from acquiring other lands which are in the vicinity of its separate trust parcels, but which are not within or contiguous to that tribe's “reservation boundaries.” A few tribal commenters stated that this limitation is substantive and is not contained in ILCA section 2203, and therefore should not be imposed by regulation. Another tribal commenter stated that this severely limits the unrestricted fee lands the tribe can purchase. The Department has deleted this restriction. Additionally, the Department has deleted the definition of “contiguous” since this deleted provision was the only appearance of the term “contiguous” in the regulation. Several tribal commenters also noted that the tribal land consolidation plan conditions effectively require tribes to pre-identify every transaction to be carried out under the plan—whether for sale, purchase, or exchange. These commenters noted that this requirement would cause the tribe to submit new plans or plan amendments for every such transaction. These commenters also asserted that this requirement will result in significant price inflation and force tribes to pay more for those targeted tracts than would be the case without the proposed pre-identification requirement. The Department has replaced the requirement for specifically identifying sales, purchases, and exchanges with a requirement that the plan include a description and map of the general area of the sales, purchases, and exchanges. Several tribal commenters opposed the requirement for approval of a tribal land consolidation plan as an intrusion on tribal sovereignty. Submission of a tribal land consolidation plan is optional and within the tribe's discretion. However, an approved land consolidation plan will allow a tribe to sell parcels of its trust land in connection with an overall plan to consolidate its land holdings and/or decrease fractionation. Pursuant to federal law, sales under an approved consolidation plan may also be at slightly less than fair market value. If the tribe has no plans to sell its trust land, though, there is no need for it to prepare or submit a land consolidation plan for approval. Finally, the Department clarified the process for sales and exchanges with a land consolidation plan and without a land consolidation plan. Sales and Exchanges: The Department revised section 152.210 (section 152.211 of the preliminary draft) to clarify that a grantor may waive the right to be notified of fair market value only if the grantee is Indian, among the other criteria. The Department also deleted section 152.212 of the preliminary draft, addressing requirements for appraisals to determine fair market value because the proposed draft instead incorporates the requirements into the new definition of “fair market value.” Several tribal commenters questioned the meaning of the provision, “trust or restricted land may only be conveyed to a grantee in unrestricted fee status, where all of the trust or restricted interests in the tract are being conveyed” in section 152.205 (section 152.206 of the preliminary draft). The Department has deleted this phrase and clarified that the Indian tribe with jurisdiction will receive notice and has the option to purchase. The preliminary draft provided that tribal consent for conveyance would be required if a law affecting probate and inheritance rights was in effect. The Department revised this section to clarify that tribal consent of a conveyance is required if the tribe enacted a law requiring consent. The preliminary draft required the tribe to purchase the fractional interest where it fails to promptly consent to the sale. The Department has removed that provision from the regulation. Several tribal commenters questioned use of the U.S. Department of Justice (DOJ) title standards. The Department deleted this reference and instead refers generally to Department of the Interior boundary standards. Several tribal commenters objected to the proposed provision allowing the Secretary to liquidate off-reservation interests and allow a tribe to purchase an on-reservation interest where the transfer creates a different pattern of jurisdiction or aggravates existing jurisdictional conflicts. This commenter stated that this is contrary to the Federal policy of Indian self-determination. Another commenter stated that a distinction should be made between trust interests and restricted interests because tribes have a jurisdictional responsibility upon acquisition of the beneficial interest in trust parcels. The Department has deleted this section. Tribal Tract Purchases: Two tribal commenters expressed confusion over the provision stating that tribal tract purchase authority does not extend to “purchases that are limited to any such fractional interests held in unrestricted fee status.” The Department has deleted this provision and clarified that tribal tract purchases may include conveyances to the tribe of interests held in fee and that fee interests are included in the calculation to determine whether the tribe owns at least 50% of the tract. With regard to providing notice of a tribal tract purchase to owners whose whereabouts are unknown, the Department has lengthened the time before the closing of the sale that publication in a paper can occur from 30 days to 90 days. The Department has also clarified what action it will take if it does not approve the appraisal for a tribal tract purchase. Consolidation by Sale: Several tribal representatives commented on the fact that an individual holding the largest ownership interest in the tract, and 20% or greater of the ownership interests in the tract, has a right to match the highest bid. The Department has not made any substantive changes to these provisions because they are prescribed by AIPRA. One tribal commenter stated that the regulation should clarify that both trust and fee interests are subject to consolidation by sale. The Department has clarified this in section 152.402. Another tribal commenter asked whether a fee interest owner would be able to trigger a consolidation by sale. Proposed section 152.403 entitles only “eligible bidders” to submit applications for consolidation by sale. A fee owner may submit an application if he or she meets one of the categories for “eligible bidder.” Finally, the Department revised the definition of “bona fide” and made other clarifications. Partition in Kind: The Department simplified section 152.501, establishing what tracts may be partitioned and deleted the provision excluding partitions of restricted land in Alaska. The preliminary draft included a provision at section 152.606(b) stating that the tribe will not have the right of first refusal where encumbered land is purchased as a result of a foreclosure or sale proceeding. Several tribal commenters asserted that the tribe should have the right to purchase interests that are to be foreclosed and are to be taken into unrestricted fee status. The Department has deleted this provision and instead states that title will be taken in accordance with laws applicable to the foreclosure or sale proceeding. Distribution Table—25 CFR Part 152 The following distribution table indicates where each of the current regulatory sections in 25 CFR part 152 is located in the proposed 25 CFR part 152. Current citation New citation Title Remarks 152.1 What does this part do? New section. 152.1 152.2 What terms do I need to know? Adds and amends definitions. 152.3 Will the Secretary provide ownership information? New section. 152.4 To whom will the Secretary provide ownership information? New section. 152.5 Which subparts do not apply to Alaska? New section. 152.2 152.101 What transactions are covered by this subpart? Incorporates AIPRA principles by clarifying that the Secretary will only approve sales of tribal land when made in accordance with a consolidation plan. 152.102 What must a land consolidation plan include? New section. Lists items that must be included in a tribal land consolidation plan. 152.103 Are there any restrictions on a land consolidation plan? New section. 152.104 How does the Secretary approve a land consolidation plan? New section. 152.105 How does a tribe receive approval for a sale or exchange under a land consolidation plan? New section. 152.106 How may the tribe use the proceeds of a sale or exchange? New section. 152.107 In the absence of an approved land consolidation plan, how does a tribe get approval for an exchange of tribal land? New section. 152.108 What criteria will the Secretary use to determine whether to approve an exchange? New section. 152.3 Deleted. 152.4 152.701 Application for patent in fee Redesignated. 152.5 152.702 Issuance of patent in fee Redesignated. 152.6 152.703 Issuance of patents in fee to non-Indians and Indians with whom a special relationship does not exist Redesignated. 152.7 152.704 Application for certificate of competency Redesignated. 152.8 152.705 Issuance of certificate of competency Redesignated. 152.9 152.801 Certificates of competency to certain Osage adults Redesignated. 152.10 152.802 Application for orders removing restrictions, except Five Civilized Tribes Redesignated. 152.11 152.803 Issuance of orders removing restrictions, except Five Civilized Tribes Redesignated. 152.12 152.804 Removal of restrictions, Five Civilized Tribes, after application under authority other than section 2(a) of the Act of August 11, 1955 Redesignated. 152.13 152.805 Removal of restrictions, Five Civilized Tribes, after application under authority of section 2(a) of the Act of August 11, 1955 Redesignated. 152.14 152.806 Removal of restrictions, Five Civilized Tribes, without application Redesignated. 152.15 152.807 Judicial review of removal restrictions, Five Civilized Tribes, without application Redesignated. 152.16 152.808 Effect of order removing restrictions, Five Civilized Tribes Redesignated. 152.17, (152.18) 152.203 Who may convey an interest in trust or restricted land? Clarifies who may convey interests with Secretarial approval. 152.19 Deleted. 152.20 Deleted. 152.21 152.201 What lands are covered by this subpart? Clarifies scope of subpart. 152.202 What transactions are covered by this subpart? Clarifies scope of subpart. 152.22 Deleted. 152.204 Who can receive an interest in trust or restricted lands? New section. 152.205 What restrictions apply to a conveyance of trust or restricted land to fee status? New section. 152.23 152.206 How does an owner initiate a negotiated sale, gift, or exchange? Clarifies what a written request for negotiated sale, gift, or exchange must include. 152.207 Does a conveyance of a fractional interest require the consent of the co-owner(s)? New section. 152.208 Is tribal consent required to convey an interest in trust or restricted land located within the tribe's jurisdiction? New section. 152.24 152.210 When must fair market value be determined and provided to the grantor? Establishes circumstances in which grantor may waive right to be provided with information as to the fair market value. 152.25 152.209 Is payment required for a negotiated sale, exchange, or gift? Removes restrictions for conveyances at less than fair market value because 152.210 entitles the grantor to full information regarding the fair market value. 152.211 When must the Secretary receive payment for the conveyance of the land? New section. 152.212 How does the Secretary decide to approve a negotiated sale, gift, or exchange? New section. 152.213 How does the negotiated sale or exchange occur? New section. 152.214 When is a negotiated sale, gift, or exchange effective? New section. 152.215 How does an Indian Land Consolidation Program lien attach? New section. 152.216 How is an Indian Land Consolidation Program lien removed? New section. 152.217 When can a co-owner acquire an interest previously acquired on behalf of the tribe? New section. 152.218 What if there are liens or other encumbrances on the lands to be conveyed? New section. 152.301 What lands are covered by this subpart? New section. 152.302 What transactions are covered by this subpart? New section. 152.303 How does a tribe apply for a parcel purchase? New section. 152.304 How and when will owners be notified of an application for tribal parcel purchase? New section. 152.305 Can an individual owner preempt and succeed a tribe's right to purchase? New section. 152.306 How and when will the Secretary review an application for parcel purchase? New section. 152.307 How and when will the conveyance instrument be executed? New section. 152.401 What terms do I need to know? New section. 152.402 What lands are subject to consolidation by sale? New section. 152.403 How do I apply to consolidate a parcel by sale? New section. 152.404 What must the Secretary do before acting on an application for consolidation by sale? New section. 152.405 What consents are necessary for a consolidation by sale? New section. 152.406 How will the Secretary notify owners of the consolidation proceeding? New section. 152.407 What action does the Secretary take on comments or objections? New section. 152.408 What happens if the Secretary orders a new appraisal? New section. 152.409 How can an owner appeal a consolidation by sale proceeding? Limits discussion of advertising to consolidation by sale. 152.26 152.410 How will the Secretary notify owners of a sale after appeals have been decided? Limits discussion of advertised sale to consolidation by sale. 152.27 152.411 Who may participate in an auction or sealed bid sale? New section. 152.412 How does a tribe reserve its right to match the highest bid? New section. 152.28 152.413 How will the Secretary determine the successful bidder? New section. 152.29 152.414 What happens if no bid matches the fair market value? Deletes provisions allowing the Secretary to reject bids. 152.30 Deleted. 152.415 When must the highest bidder pay for the purchase? New section. 152.416 How will proceeds be distributed? New section. 152.417 Is Federal financial assistance available to support a bidder's purchase? New section. 152.418 What title is acquired? New section. 152.31 Deleted. 152.32 152.219 How does a transaction affect collection of construction costs for irrigation projects? Plain language. 152.33 Deleted. See subpart F. 152.34 Deleted. See subpart G. 152.35 Deleted. Subpart F—Partitions in Kind 152.501 What lands are covered by this subpart? New section 152.502 When does this subpart apply? New section. 152.503 How can an owner initiate a partition action? New section. 152.504 How will we notify the applicant's co-owners of an application for partition? New section. 152.505 How and when will we review an application? New section. 152.506 When will we execute the conveyance instruments? New section. Subpart G—Mortgages and Deeds of Trust 152.601 What does this subpart do? New section. 152.602 How do owners submit an application for approval of a mortgage or deed of trust? New section. 152.603 How will the Secretary review the application? New section. 152.604 How may the mortgage or deed of trust be enforced? New section. 152.605 Does the land remain in trust as a result of foreclosure or sale? New section. 152.606 How does the Paperwork Reduction Act affect this part? New section. E. 25 CFR Part 179—Life Estates and Present and Future Interests This regulation sets forth the authorities, policy and procedures governing the administration of life estates and future interests in Indian lands by the Secretary of the Interior. Amendments to this part explicitly identify the rights and responsibilities of the life tenant, and define the life tenant's share of income, contract bonuses, and royalties derived from the use of the land and the extraction of minerals or other resources from the land. AIPRA established that life estates are “without regard to waste,” meaning that the life tenant is entitled to all income, contract bonuses, and royalties derived from use of the land and extraction of resources. The amendments to this part incorporate this change, providing that all life estates created after June 20, 2006, will be entitled to all income, contract bonuses, and royalties, in the absence of an order, conveyance document, or written agreement specifying otherwise. The amendments delete the Single Life Factor table for determining the respective values of a life estate and remainder share and instead refer to Actuarial Table S, Valuation of Annuities, obtained from 26 CFR 20.2031. The amendments also eliminate the distinction between the genders in determining the value of a life estate; the current regulations generally value life estates held by females higher than those held by males. New sections address several topics that allow the Department to determine the type of estate and interest in which a beneficial interest may be held, to ensure that the holder of a life estate, the measuring life for a life estate, the holder of a future interest, and class members can be ascertained in all cases, including when the conveyance document or probate order includes conditions. The amendments also address the termination and renunciation of life estates, establish why notification to BIA of the death of a life tenant is important, and establish that term estates will be treated in the same manner as life estates for the purposes of distributing income, cash bonus, and principal. Changes From Preliminary Draft The Department added several new definitions, including “class,” “condition,” “contingent remainder,” “conveyance document,” “estate,” “executory interest,” “extant person,” “grantee,” “grantor,” “holder,” “life tenant,” “open class,” “order,” “present interest,” “remainderman,” “reversionary interest,” “Secretary,” “term estate,” and “vested.” The Department also added several sections and expanded others since it released the preliminary draft of part 179. Effect of State Law: The preliminary draft stated that the Department would look to state law for guidance in the absence of Federal law or Federally approved tribal law. This section has been deleted because the Office of Hearings and Appeals will determine when it is appropriate to look to state law. Ascertaining Beneficial Interests and Classes: The Department has added several provisions that ensure that the Department can determine the type of estate and interest in which a beneficial interest may be held. For example, proposed section 179.3 ensures that the interest in a life estate vests only in specific, living persons, without conditions. Proposed section 179.4 ensures that the “measuring” life for a life estate is a specific person who is living at the time the conveyance document is approved or testator dies. Proposed section 179.5 ensures that the interest in future interest holders vests only in specific, extant persons, and if there are conditions, that those conditions can be satisfied before the Secretary's approval of the conveyance document, if the future interests are created by conveyance document, or by the death of the testator, if the future interests are created by will. This section will, in practice, forbid successive future interest in persons who are non-specific, non-living persons. Likewise, proposed sections 179.6, 179.7 and 179.8 indicate that, where the conveyance or will grants an interest to a class, the class will close and any conditions must be satisfied upon approval of the conveyance document or death of the testator. Proposed section 179.8 also describes the circumstances in which the Secretary may close or open a class. These changes allow the Secretary to know, at the time of approval of conveyance document or death of the testator, who holds the beneficial interests. Without Regard to Waste: During tribal consultations and during the period leading up to the publication of this proposed rule, several tribal commenters expressed concern with the preliminary draft's definition of “without regard to waste” and the phrase's effect on protection of the remainderman's interest from abusive practices of the life tenant. AIPRA states that all life estates created on or after June 20, 2006, shall be “without regard to waste” and defines this phrase as meaning that the life tenant shall be entitled to all income, including bonuses and royalties, to such land to the exclusion of the remaindermen. The Department has incorporated this concept into the regulations at proposed section 179.12, which provides that, where the order, conveyance document, or written agreement does not specify otherwise, life tenants will be entitled to all income, principal, contract bonuses, and royalties where the life estate was created by a conveyance document after the effective date of this regulation or by an order in a probate case where the testator died on or after June 20, 2006. The Department has also added sections 179.9, 179.10 and 179.11, which respectively establish the privileges of a life tenant, the responsibilities a life tenant has to the remainderman, and action a remainderman may take to stop a life tenant from damaging and substantially diminishing property. Section 179.10 specifically states that, with respect to life estates created by probate order after June 20, 2006, or by conveyance document after the passage of this regulation, the life tenant may not destroy the estate, commit malicious waste, or fail to reasonably manage the land in a manner consistent with long-term utilization and trust status of the land. Sale or Leasing of Interests: The Department has clarified in proposed section 179.9 that the life tenant may rent or sell the life estate interest to someone else. Additionally, section 179.10 notes that provisions regarding the relationship between a life tenant and remainderman do not restrict or amend the authority of the Secretary to consent on behalf of interest owners to the leasing or transfer of Indian land. Value of Current Life Estate and Remainder: Several tribal commenters identified an issue with placing the Single Life Factor chart directly into the text of the regulation, stating that it will be difficult to update. The Department has addressed this issue by deleting the Single Life Factor chart from the text of the regulation and instead referring to an existing chart that is frequently updated. Distribution Table—25 CFR Part 179 The following distribution table indicates where each of the current regulatory sections in 25 CFR part 179 is located in the proposed 25 CFR part 179. Current citation New citation Title Remarks 179.1 179.1 What is the purpose of this part? Clarifies that these regulations do not apply to any Federal statutory rights to purchase. 179.2 179.2 What terms do I need to know? Adds several definitions. 179.3 Deleted. 179.3 Who can hold a life estate? New section. 179.4 Who can be the measuring life for a life estate? New section. 179.5 Who can be designated as a future interest holder? New section. 179.6 Who can be members of a class? New section. 179.7 How are interest holders determined if the conveyance document or order contains conditions? New section. 179.8 How are members to be determined if there is an open class? New section. 179.9 What are the privileges of a life tenant? New section. 179.10 What is the life tenant's responsibility to the remainderman? New section. 179.11 How can a future interest holder stop the life tenant from damaging his/her interest and substantially diminishing its value? New section. 179.4 179.12 How will the Secretary distribute income and principal between the life tenant and the remainderman? Incorporates AIPRA provisions for life estates created after AIPRA's effective date, providing that these life tenants are entitled to all income, principal, contract bonuses, and royalties. 179.5 179.13 How will the value of a current life estate and remainder be determined? Replaces existing life estate value tables with a reference to one table. Deletes gender as factor affecting life estate values. 179.14 How does a life estate terminate? New section. 179.15 What if I do not want an interest in a life estate? New section. 179.16 Why do I need to notify the Secretary about the death of a life tenant? New section. 179.17 How will term estates be treated? New section. 179.6 Deleted. F. 43 CFR Part 4, Subpart D Currently, subpart D of 43 CFR part 4 addresses how OHA adjudicates the probate file that BIA prepares under 25 CFR part 15. The amendments remove the probate hearing procedures to a new part 30. See the discussion of these changes below. G. 43 CFR Part 30 The amendments make many administrative changes to the part to better meet plain language requirements and make the OHA probate process as transparent as possible. In addition, the amendments make several substantive changes. Amendments to this part clarify the two types of probate proceedings (summary and formal), simplify the deadline for filing a claim against an estate, and clarify the authority of administrative law judges, Indian probate judges, and attorney decision makers. Other amendments reduce the impact of fractionation on trust and restricted lands and expand land consolidation options by incorporating administrative procedures to implement AIPRA provisions related to consolidation agreements, renunciations in favor of a designated recipient, and purchase options at probate. Consolidation agreements permit heirs and devisees to exchange interests in trust or restricted lands for the purpose of consolidating ownership. Renunciations in favor of a designated recipient enable heirs or devisees that would have inherited a trust or restricted interest to renounce that interest in favor of another eligible party. The availability of the option to purchase a decedent's trust or restricted interests has been expanded to allow tribes, eligible family members, and co-owners of trust or restricted interests to exercise the option. Changes From Preliminary Draft Because a significant number of issues on 43 CFR part 4 were identified in tribal comments, the following discussion addresses the issues by subheading in the new 43 CFR part 30. Overall: The Department reorganized some sections in this subpart to provide a better logical flow. For example, the Department moved former sections 4.382 and 4.383, related to the omission and improper inclusion of property in an estate, to sections 30.126 and 30.127 under the “Judicial Authority and Duties” subheading. Additionally, former section 4.216, related to what happens when a person dies without a will and has no heirs, has been moved to section 30.254 under the “Miscellaneous” subheading. Section 4.217, related to settlement agreements, has been moved to section 30.150, under the new subheading “Consolidation and Settlement Agreements” (formerly, this subheading included only consolidation agreements). Provisions related to tribal purchase of interests under special statutes (sections 4.290 through 4.304 of the preliminary draft) have been moved to sections 30.260 through 30.274. The Department also added a few sections under the “Renunciation of Interests” and “Summary Probate Proceedings” subheadings for clarity. The Department and tribal commenters identified potential confusion regarding references to “allocated market value,” “estimated market value,” and “appraised market value.” The Department has addressed this issue by deleting references to “allocated” and “estimated” market value and replaced them with “appraised” market value. Several tribal commenters noted that while the preliminary drafts established timelines for filing an appeal, they did not impose any timelines on OHA to act. For example, several tribal commenters suggested placing a deadline on OHA for designating a case as appropriate for summary or formal hearing and assigning a case to a judge 10 days after receiving the file from BIA. Other tribal commenters suggested imposing a timeframe on notifying potential heirs that a probate case has been assigned to a judge. Another tribal commenter recommended setting time periods for holding the hearing and issuing a final decision in a probate case. The Department has determined that, given the variation in complexity and resources available, establishing set timelines for judges would not be feasible. Definitions: In response to tribal comments, the Department modified the current definition of “interested parties” to ensure that tribes and co-owners with the option to purchase are included in the definition. Several tribal commenters were concerned that the definition in the preliminary draft was too narrow, and would not provide notice to persons with an interest. The revised definition includes tribes and persons with the option to purchase at probate and all co-owners. (See proposed section 30.102). Additionally, the Department revised several definitions included in the preliminary draft to ensure consistency with AIPRA and 25 CFR part 15. The Department amended the definition of “child” to include adopted children, in response to tribal comments that biological and adopted children should be treated equally in the distribution of property at probate. The Department also amended other terms for precision: for example, it changed “trust financial assets” and “cash assets” to “trust personalty” to encompass both cash and securities; it changed “beneficiaries” to “devisees,” which is a more precise term including only those who receive under a will; it revised the definitions for “per stirpes” and “de novo” for clarity; and it deleted the placeholders for definitions for “residing on” and “pretermitted spouse,” having determined that meanings for these terms are subject to judicial determination based on fact-specific circumstances. Commencement of Probate Proceedings: The Department clarified in section 30.114 that OHA will provide notice of the formal or summary probate proceeding and eliminated the requirement for BIA to notify potential heirs and devisees when it forwards the probate file to OHA for consideration because sufficient notice is provided by OHA upon designation of the case for a formal or summary probate proceeding. Judicial Authority: The Department amended section 4.220 of the preliminary draft, relating to the judge's general authority. It is now designated as section 30.120. In proposed subsection (f), the Department clarifies that the probate decision and order, not the terms of the sale, determine how the sale at probate and distribution of interests will occur. The Department also clarifies in proposed subsection (i) that the judge first determines whether the tribe has jurisdiction over the trust or restricted property at issue. The Department clarified the standard against which a judge may determine a person to be dead based upon an extended unexplained absence. The revisions require credible evidence to establish, by a clear and convincing standard, that the person has had no known contact with any person or entity during the six-year period preceding the hearing. (See proposed section 30.124). Claims: Tribal commenters pointed out that deadlines for filing claims were both unclear and potentially conflicting. The Department significantly amended the provisions related to deadlines for filing claims to simplify the deadline and make consistent with 25 CFR part 15. The deadlines established in the preliminary draft complicated the matter of determining timeliness of claims and introduced both factual and legal issues, including choice of law issues, to determine when the creditor was chargeable with notice. Additionally, the preliminary draft continued the current requirement that the creditor file with BIA rather than OHA. This requirement is no longer appropriate since BIA no longer conducts any probate hearings. For this reason, the Department is allowing filing of claims with BIA while the probate file is being prepared, or with the OHA once the probate file has been transferred to the OHA. The Department has also clarified what must be included in a claim and eliminated the requirement for filing in triplicate. Additionally, the Department deleted the section related to priority and general claims (what had been sections 4.245 and 4.248 in the preliminary draft). Settlement and Consolidation Agreements: The Department placed provisions relating to settlement agreements with those relating to consolidation agreements. Revisions to the sections on consolidation agreements now specify that there are two types of consolidation agreements, one including only property in the estate, and another including both property in the estate and other property already owned by the heirs or devisees. The Department added a section allowing parties to a settlement or consolidation agreement the ability to waive valuation of trust property, given that the parties to the agreement may have non-economic reasons for entering into the agreement. Purchase at Probate: The Department clarified provisions relating to purchase at probate and clarified that, in accordance with AIPRA, an appraisal must be completed to determine market value. The Department also clarified provisions relating to renunciations to clarify who may receive a renounced interest in trust or restricted land, and who may receive a renounced interest in trust personalty. The Department also changed the previous provision that had stated the renunciation would not be valid if the designated recipient of a renounced interest refused to take the interest. Instead, this provision now states that the renounced interest will pass to the heirs of the decedent as if the person renouncing the interest had predeceased the decedent. Summary Probate Proceedings: The Department clarified what summary probate proceedings are and simplified the criteria for when a summary probate proceeding is appropriate (i.e., when the estate is “cash only” and the estate's value does not exceed $5,000 on the date of death). The Department deletes references to consolidation agreements and purchases at probate with regard to summary probate proceedings because such agreements would not apply to a cash-only estate. Formal Probate Proceedings: In response to tribal concerns regarding notice of a tribe's right to purchase, the Department amended section 4.337 of the preliminary draft to require notice to the tribe of probates of estates with trust or restricted land under the tribe's jurisdiction (see proposed section 30.213). The Department has deleted the question related to the judge's authority to require a person to appear at a hearing (section 4.334 of the preliminary draft) because, while the judge does have this authority, the judge's subpoena authority is broader than the question and answer indicates. The section related to notice of a requirement to appear at a hearing has also been deleted to avoid confusion. With regard to contests of self-proved wills, the Department has added a provision allowing the judge to order the deposition of a witness at a location reasonably near the witness's residence, where no attesting witness resides near the place of the hearing. The Department has also clarified that the official record of the probate case and decisions contain settlement agreements, consolidation agreements, renunciations and acceptances of renounced property, and additional items where interests are sold at probate. Miscellaneous: The section addressing the rights of inheritance of someone who kills the decedent has been revised to comply with AIPRA. The Department also clarifies that a judge may allow fees for attorneys representing interested parties, but not creditors and that a judge may order the payment of fees to a guardian ad litem. Distribution Table—43 CFR Part 4, Subpart D The following distribution table indicates where each of the current regulatory sections in 43 CFR part 4, subpart D, is located in the proposed 43 CFR part 30 and in proposed revisions to 43 CFR part 4. Current citation New citation Title Remarks 4.200 30.100 How do I use this subpart? Adds updated references. 30.101 Will the Secretary probate all the land or assets in an estate? New section. 4.201 30.102 What terms do I need to know? Adds definitions for “BLM,” “consolidation agreement,” “directional disclaimer,” “probate staff,” “purchase option.” Replaces “deciding official” with “judge.” Deletes definition of “solicitor.” 4.210, 4.211 30.110 When does OHA commence a probate case? Plain language. 30.111 How does OHA commence a probate case? Plain language. 30.112 What must a complete probate file contain? Plain language. 30.113 What will OHA do if it receives an incomplete probate file? Adds that OHA may issue a subpoena for the missing information or proceed with a hearing. 30.114 What notice of the probate case will OHA send me? Adds that OHA will provide notice upon receipt of the probate file. 30.115 Can I review the probate file? New section. 4.202 30.120 What authority does the judge have in a probate case? Deletes criteria for when a formal hearing is necessary. Adds new categories of authority. 30.121 May a judge appoint a master in a probate case? New section. Allows judge to appoint masters. 30.122 Is the judge required to accept the master's recommended decision? New section. 4.206 30.123 Will the judge determine matters of status and nationality? Plain language. 4.204, 4.203 30.124 Can a judge find a person to be dead by reason of unexplained absence? Establishes standard for finding that any person is dead. 4.205 30.154 What happens when a person dies without a will and has no heirs? Incorporates AIPRA references. 4.242 30.125 May a judge reopen a probate case to correct errors and omissions? Plain language. Identifies circumstances in which judge may reopen probate case. 30.130 When must a judge or attorney decision maker (ADM) recuse himself or herself from a probate case? New section. 30.131 Where may a judge or ADM seek guidance on recusal? New section. 30.132 May an interested party to a probate proceeding excuse a judge from hearing a case? New section. 30.133 May an interested party to a probate proceeding request that a judge recuse? New section. 30.134 What must the judge consider when deciding whether to recuse? New section. 30.135 What action will the judge take after deciding to recuse himself or herself? New section. 30.136 How will the case proceed once the judge has recused? New section. 30.137 Can I appeal the judge's recusal decision? New section. 30.138 When can I appeal the judge's recusal decision? New section. 4.250(a) 30.140 When must I file a claim against the probate estate? Amends deadline for filing claims. 4.250(c) 30.141 How must I file a creditor claim against the probate estate? Eliminates requirement for triplicate filing. Clarifies what must be included in the affidavit and itemized statement. 4.250(b) 30.142 Will a judge authorize payment of a claim from the trust estate where the decedent's non-trust estate may be available? Plain language. 4.250(d)-(f) 30.143 Are there any categories of claims that may not be allowed? Adds category for claims attributable to payments for general assistance, welfare, or similar assistance. 4.251(a) 30.144 May the judge authorize payment of the costs of administering the estate? Plain language. 4.251(b) What are priority claims the deciding official may authorize payment for? Deleted. 4.251(c) When may the deciding official authorize payment of general claims? Deleted. 4.251(d) 30.145 When can a judge reduce or disallow a claim? Plain language. 4.251(e)-(g) 30.147 What happens if there is not enough money in the IIM account to pay all the claims? Plain language. 4.251(h) 30.148 Will interest or penalties charged against claims after the date of death be paid? Plain language. 4.252 30.146 What property is subject to claims? Plain language. 4.207 30.150 If the interested parties agree to settle matters among themselves, what does the judge do? Plain language. Deletes reference to liability for irrigation construction and operation costs. Deletes provisions regarding preparation, deliverance, and approval of deeds. 30.151 May the devisees or eligible heirs in a probate proceeding consolidate their interests? New section. Adds AIPRA provisions allowing for consolidation agreements. 30.152 May the parties to a settlement agreement or consolidation agreement waive valuation of the trust property? New section. 30.153 Is an order approving a consolidation agreement or settlement agreement considered a partition or sale transaction? New section. Clarifies basis and procedures for approval of consolidation agreements. 30.160 What can be purchased at probate? New section. Incorporates provisions for purchase at probate. 30.161 Who can purchase at probate? New section. Incorporates definition for eligible purchaser. 30.162 Does property purchased at probate remain in trust or restricted status? New section. 30.163 Is consent required for a purchase at probate? New section. Adds provisions describing when consent of an heir or devisee is required for a purchase at probate. 30.164 What must I do to purchase at probate? New section. Adds provisions describing procedure for requesting a purchase at probate. 30.165 Who will OHA notify of a request to purchase at probate? New section. Adds provisions for notification by OHA and required contents of the notice. 30.166 What will the notice of the request to purchase at probate include? New section. 30.167 How does OHA decide whether to grant a request to purchase at probate? New section. 30.168 What will the judge consider in determining the market value of an interest? New section. Clarifies that a judge must base the market value on an appraisal that meets certain standards. 30.169 If I do not agree with the appraised market value, what can I do? New section. Establishes process for challenging appraisal. 30.170 What happens when OHA grants a request to purchase at probate? New section. Clarifies the procedures for notifying the successful bidder and finalizing the sale. 30.171 When must the successful bidder pay for the interest purchased? New section. 30.172 What happens after the successful bidder submits payment? New section. 30.173 What happens to the money from the sale? New section. Clarifies that the Department will distribute the money from the sale to the appropriate heirs, devisees, and/or spouse. 30.174 What happens if the successful bidder does not pay within 30 days? New section. Clarifies that the sale will be cancelled if the successful bidder fails to pay the bid within 30 days. 4.208 30.180 May I give up an inherited interest in trust or restricted property or trust personalty? Plain language. 30.181 How do I renounce an inherited interest? Plain language. 30.182 Who may receive a renounced interest in trust or restricted land? New section. 30.183 Who may receive a renounced interest of less than 5 percent in trust or restricted land? New section. 30.184 Who may receive a renounced interest in trust personalty? New section. 30.185 Can my designated recipient refuse to accept the interest? New section. 30.186 Are renunciations that predate the American Indian Probate Reform Act of 2004 valid? New section. 4.208(c) 30.187 May I revoke my renunciation? Plain language. 4.208(b) 30.188 Does a renounced interest vest in the person who renounced it? Plain language. 4.212 30.200 What is a summary probate proceeding? Deletes provision stating that Federal law or tribal code may prevent summary processing. 30.202 May I request a summary probate proceeding be replaced by a formal proceeding? Changes time period for filing a request for formal hearing from 60 days to 30 days. 30.201 What does a notice of a summary probate proceeding contain? New section. 4.213 Deleted. 4.214 30.203 What must a summary probate decision contain? Adds provisions regarding renunciation. Deletes provisions regarding dower, curtesy, and homestead, and requirement to attach certified inventory of trust or restricted lands. Changes time in which decision will become final from 60 days to 30 days. 4.215(a)-(c) 30.204 How do I seek review of a summary probate proceeding? Changes time period for filing request for de novo review from 60-day period to 30-day period. 4.215(d) Deleted. Provision had allowed persons to request de novo review after expiration of time period for filing request under certain circumstances. 4.215(e) 30.205 What happens after I file a request for a de novo review? Plain language. 30.206 What happens if nobody files for a de novo review? New section. Establishes what happens at expiration of 30-day period for filing de novo review. 4.216 30.210 How will I receive notice of the formal probate proceeding? Adds locations for posting. Deletes provision establishing that interested parties living near posting will be bound by decision. 30.213 What notice to a tribe is required in a formal probate proceeding? Expands notice to tribes where there is a statutory option to purchase to provide notice to tribe of every formal probate proceeding involving trust or restricted land over which the tribe has jurisdiction. 30.211 Will the notice be published in a newspaper? New section. 30.212 Can I waive notice of the hearing, the time limits, or form of notice? New section. 4.217 30.214 What must a notice of hearing contain? Plain language. Adds provisions regarding consolidation and renunciation. 4.220(a), (c) 30.215 How can I obtain documentation related to the probate proceeding? Plain language. Adds provisions. 4.221(a)-(c) 30.216 How does an interested party obtain permission to take depositions? Plain language. 4.221(d)-(g) 30.217 How is a deposition taken? Plain language. 4.221(h) 30.218 How may the transcript of a deposition be used? Plain language. 30.219 Who pays for the costs of taking a deposition? New section. 4.222 30.220 How does an interested party obtain written interrogatories and admission of facts and documents? Plain language. Deletes provision regarding cross-interrogatories. 4.223 30.221 May the judge limit the time, place, and scope of discovery? Plain language. 4.224 30.222 What happens if a party fails to comply with discovery? Provides that the judge may draw inferences adverse to the claims of the party who failed to comply with the discovery request. 4.225 30.223 What is a prehearing conference? Plain language. 4.230 30.224 Can a judge compel a witness to appear and testify at a hearing? Establishes procedure for requesting a subpoena. 4.231 30.225 Are probate hearings open to the public? Clarifies that probate hearings are open to public. Establishes that the judge may seal the record or transcript of sequestered hearings. 30.226 Must testimony in a probate proceeding be under oath or affirmation? Plain language. 30.227 Is a record made of formal probate hearings? Plain language. 4.232 30.228 What evidence is admissible at a probate hearing? Clarifies evidentiary admissibility matters. 4.233(a)-(b) 30.229 Is testimony required for self-proved wills or codicils? Moves affidavit language to 25 CFR part 15. Adds that judge may order deposition of available attesting witnesses at location reasonably near residence of witness. 4.233(c) 30.230 What if approval of the self-proved will, codicil or revocation is contested? Plain language. 4.234 30.231 Who pays witnesses’ costs? Plain language. 4.235 30.232 May a judge schedule a supplemental hearing? Plain language. 4.236(a) 30.233 What will the official record of the probate case contain? Plain language. 4.236(b) 30.234 What will the judge do with the original record? Plain language. 30.235 What happens if a hearing transcript has not been prepared? Plain language. 4.240(a) 30.236 What will the judge's decision in a formal probate hearing contain? Specifies what decision will contain in intestate case and in testate case. Adds provisions for renunciations, consolidation and settlement agreements, and purchases at probate. 4.240(b) 30.237 What notice of the decision will the judge provide? Changes time period from 60 to 30 days. 4.241(a) 30.238 May I file a petition for rehearing if I disagree with the judge's decision in the formal probate hearing? Changes time period for filing petition from 60 to 30 days. Requires judge to forward copy of petition to affected agencies. 4.241(b) 30.239 Does any distribution of the estate occur while a petition for rehearing is pending? Plain language. 4.241(c)-(e) 30.240 How will the judge address a petition for rehearing? Plain language. 4.241(f) 30.241 Can I submit another petition for rehearing? Clarifies that judge's jurisdiction over case ends upon final disposition of petition for rehearing, except for reopening. 4.241(g)-(h) Deleted. 30.242 When does the judge's decision on a petition for rehearing become final? New section. Establishes that decision does not become final for 30 days. 4.242 30.243 Can a closed probate case be reopened? Changes time for filing petition and measures from date error was discovered. Clarifies standard for reopening. 30.244 How will the judge address my petition for reopening? Plain language. 30.245 What happens if the judge reopens the case? Eliminates 75-day period for not distributing. 4.242(h)-(i) Deleted. 30.246 When will the decision on reopening become final? New section. 4.261 30.250 When does the anti-lapse provision apply? Plain language. 4.262 30.251 What happens if an heir or devisee knowingly participates in the willful and unlawful killing of the decedent? Changed from “feloniously taking a testator's life” to comply with AIPRA language. Expands to apply to intestate succession. Establishes that person will be treated as if predeceased. 4.270 Deleted. 4.271 30.126 What happens if property was omitted from the inventory of the estate? Plain language. 4.272 30.127 What happens if property was improperly included in the inventory of the estate? Plain language. 4.273 Deleted. 4.281 30.252 Can a judge allow fees for attorneys representing interested parties? Plain language. Allows fees for all interested parties, except creditors. 4.282 30.253 How must minors or other legal incompetents be represented? Plain language. 4.300(a) 30.260 What land is subject to a tribal purchase option at probate? Plain language. 4.300(b)-(d) 30.261 What determinations with regard to a tribal purchase option will a judge make? Plain language. 4.301 30.262 When will BIA furnish a valuation of a decedent's interests? Plain language. 4.302(a) 30.263 When is a final decision issued? Plain language. 4.302(b) 30.264 When may a tribe exercise its statutory option to purchase? Plain language. 30.265 How does a tribe exercise its statutory option to purchase? Plain language. 4.303 30.266 May a surviving spouse reserve a life estate when a tribe exercises its statutory option to purchase? Plain language. 4.304 30.267 What if I disagree with the probate decision regarding tribal purchase option? Plain language. 4.305(a) 30.268 May I demand a hearing regarding the tribal option to purchase decision? Plain language. 4.305(b) 30.269 What notice of the hearing will the judge provide? Plain language. 4.305(c)-(d) 30.270 How will the hearing be conducted? Plain language. 4.306 30.271 How must the tribe pay for the interests it purchases? Plain language. 4.307(a) 30.272 What are the Superintendent's duties upon payment by the tribe? Plain language. 4.307(b) 30.273 What action will the judge take to record title? Plain language. 4.308 30.274 What happens to income from land interests during pendency of the probate? Plain language. 4.320(a) 4.320 Who may appeal a judge's order on petition for rehearing or reopening? Plain language. 4.320 (b)(1)-(3) 4.321 How to appeal a judge's order on petition for rehearing or reopening or regarding purchase of interests in a deceased Indian's trust estate. Plain language. 4.322 What an appeal must contain. Plain language. 4.320(c) 4.323 Service of the notice of appeal. Plain language. 4.320(d) 4.324 Record on appeal. Plain language. 4.321 4.325 Docketing the appeal. Plain language. 4.322 4.326 Disposition of the record. Plain language. V. Public Comments During the period prior to this publication, from December 27, 2005 to March 31, 2006, the Department received correspondence (e-mails, letters, and faxes) from tribes and individual Indians. Of these, the majority addressed at least one of the regulations being proposed today. The remaining addressed only those regulations that were part of the December 27, 2005 package sent to the tribes, but are not part of this proposed rule. The Department has stored these comments so that it can review them when it addresses those remaining regulations. These comments raised several issues that the Department considered in preparing the drafts for publication as a proposed rule. A summary of those issues that were considered in developing the proposed regulatory language is provided under a subheading “changes to preliminary drafts” under the discussion of each part in the Part-by-Part Analysis. There will also be a 60-day public comment period following this publication. Subsection B provides directions for submitting written comments and information on upcoming tribal consultations addressing this rulemaking. A. Comments Received Prior to This Publication The Department provided tribal leaders with preliminary drafts of this proposed rule in December 2005 and requested comment by the end of March 2006. Additionally, the Department held two pre-publication tribal consultation sessions in February 2006 and March 2006 to obtain input on the preliminary drafts. As previously mentioned, the Department received an overwhelming number of comments during the Albuquerque tribal consultation regarding the volume of regulatory text and number of preliminary draft regulations. In response to these comments, the Department has decided to first focus on those regulations required for, or closely related to, implementation of AIPRA. These regulations are being published today. These regulations are a priority for the Department because they are necessary to implement AIPRA, which became fully effective on June 20, 2006. The remaining regulations that were distributed as preliminary drafts will be re-examined and consulted on at a future date. Issues raised during tribal consultations and in the time leading up to publication of this proposed rule that are specific to one or more regulations or regulatory sections are addressed in the Part-by-Part Analysis, below. B. Directions for Submitting Comments The regulatory amendments proposed in this rulemaking include substantive changes streamlining and standardizing Department procedures to better serve beneficiaries and incorporating statutory law. The amendments also include revisions that are simply administrative in nature, including changes to better meet plain language requirements, defining acronyms, and updating personnel and agency titles. Both tribal and non-tribal members of the public are invited to make substantive comment on any of these changes, whether they be with respect to substantive or administrative changes. Two copies of written comments should be submitted to the address indicated in the ADDRESSES section of this notice. Comments may also be telefaxed to (202) 208-5320 or submitted by electronic mail (“email”) to Michele_F_Singer@ios.doi.gov. For comments submitted electronically, please include the number 1076-AE59 in the subject line of the message. All comments received will be available for public inspection at the Department of the Interior, 1849 C Street, NW., Washington, DC 20240. All written comments received by the date indicated in the DATES section of this notice and all other relevant information in the record will be carefully assessed and fully considered prior to publication of the final rule. Any information considered to be confidential by the commenter must be so identified and submitted in writing. The Department of the Interior reserves the right to determine the confidential status of the information and to treat it according to our determination (see 10 CFR 1004.11). The Department has scheduled an additional consultation meeting in Rapid City, South Dakota on July 27, 2006, from 8 a.m. to 5 p.m., at the Best Western Ramkota Hotel and Conference Center. The Department also plans to host two additional consultation meetings in Billings, Montana on August 8, 2006, from 8 a.m. to 5 p.m., at the Sheraton Billings Hotel and in Minneapolis, Minnesota on August 10, 2006, from 8 a.m. to 5 p.m., at the Ramada Mall of America. All tribal and non-tribal persons interested in this rulemaking are encouraged to participate in these consultations. VI. Procedural Requirements A. Regulatory Planning and Review (Executive Order 12866) Executive Order 12866 (58 FR 51735, October 4, 1993) requires Federal agencies taking regulatory actions to determine whether that action is “significant.” Agencies must submit regulatory actions that qualify as “significant” to the U.S. Office of Management and Budget (OMB) for review, assess the costs and benefits of the regulatory action, and fulfill other requirements of the Executive Order. A “significant regulatory action” is one that is likely to result in a rule that may meet one of the following four criteria: (1) Have an annual effect on the economy of $100 million or more or adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of the recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. OMB has determined that the rule is not a significant rule under Executive Order 12866 because it is not likely to result in a rule that will meet any of the four criteria. (1) The rule will not have an annual effect on the economy of $100 million or more or adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. This rule will not have an annual effect on the economy of $100 million or more, as described below. The following discussion individually addresses each Code of Federal Regulations (CFR) part and significant changes within each part, where appropriate. Within the discussion of each CFR part is a brief statement of the major changes, the baseline (i.e., the current state of affairs), an analysis of the economic effect of the change in comparison to the baseline alternative, and a brief conclusion. 25 CFR Part 15 This part governs the processing of probate estates by BIA. Amendments will ensure that the BIA compiles sufficient information into the probate file so that when BIA passes the probate file on to OHA, OHA can properly administer the probate estate. The baseline for this analysis is the existing part 15, which does not incorporate requirements for certain items of information to be included in the probate file. The Secretary has sole statutory authority to probate Indian estates. 25 U.S.C. 372; First Moon v. White Tail & United States , 270 U.S. 243, 46 S. Ct. 246, 70 L. Ed. 565; United States v. Bowling , 256 U.S. 484, 41 S. Ct. 561, 65 L. Ed. 1054; Lane v. United States , 241 U.S. 201, 36 S. Ct. 599, 60 L. Ed. 956; Hallowell v. Commons , 239 U.S. 506, 36 S. Ct. 202, 60 L. Ed. 409. Bertrand v. Doyle , 36 F.2d 351 (10th Cir. 1929). As such, it is imperative that the Secretary have all the information necessary to properly determine the heirs and distribute estate assets. The alternative to these amendments (i.e., the baseline) would deprive OHA of the information it needs to accurately identify what property is part of the estate, who the heirs and devisees are, and how the property should be distributed among the heirs and devisees. The recently enacted AIPRA amendments to ILCA, 25 U.S.C. 2201 et seq. , affects the determination of how property should be distributed among the heirs and beneficiaries by allowing certain persons to purchase interests in property at probate and consolidation agreements, and affecting who can inherit a small fractional interest. AIPRA therefore directly affects the determinations that OHA will make and requires additional information to be included in the probate file. The primary benefit of the amendments is that they ensure that OHA will have the information it needs in the probate file to adjudicate Indian estates. Because this part addresses only internal processes, and does not impose any enforceable obligation on persons outside the BIA, there is no effect to the outside economy. Amendments to this part focus on the BIA's procedures in compiling a complete probate file, and addressing what should be included in that file. No economic impact is associated with these internal processes. 25 CFR Part 150 The revised Part 150 provides clarification of the LTRO's procedures and increases the ability of the LTRO to provide services and products to Indians, tribes, and the public. Specifically, the amendments describe the LTRO process for receiving and recording title instruments, clarify what services and products LTRO provides, and clarify what documents qualify as title instruments. Currently, the regulations do not clearly define the procedures, products, and services of the LTRO. Finally, the amendments provide a schedule of fees for non-probate LTRO products and services that will be charged. Those parts of the regulation that describe the processes, services, and products of the LTRO will have no effect on the economy. The amendments that establish fees for LTRO services and products are comparable to those fees charged by local governments for the comparable services and products. These amendments merely redistribute the costs by requiring fees normally paid for by the public at large to be borne by the individuals, other than the excepted categories of individuals, directly benefiting from the service or product. Therefore the effect, if any, on the economy resulting from these amendments is minimal. For these reasons, the amendments to part 150 will not have an effect on the economy. 25 CFR Part 152 Amendments to this part reorganize subparts and sections within subparts for clarity. Procedures for each of the following conveyances are now clarified: • Allowing for conveyances at less than fair market value under certain circumstances (see § 152.109); • Tribal option to purchase where land is proposed to be conveyed in unrestricted fee (see § 152.206); • Conveyances of fractional interests without tribal consent under certain circumstances. Also, tribal options to purchase interests being sold, gifted or exchanged by individual Indians where the tribe has enacted a law that imposes such a requirement (see § 152.209); • Tribal tract purchases of fractional interests of non-consenting owners (see Subpart D at § 152.302); and • Eligibility for conveying trust and restricted land (see § 152.203). Additionally, the amendments implement ILCA policy goals and AIPRA provisions allowing for: • Conveyances in accordance with tribal land consolidation plans (see subpart B at § 152.101); • Consolidation of highly fractionated tracts by purchase of interests at fair market value (see subpart E at § 152.401); and • Partition of fractionated lands to unitize interests (see subpart F at § 152.501). The amendments also detail eligibility for conveying trust and restricted land, conveying trust and restricted land at less than fair market value, the attachment and removal of Indian Land Consolidation Program liens, and the procedures for mortgages and deeds of trust. The baseline for this analysis is the current part 152, which does not incorporate AIPRA's provisions advancing consolidation goals. The current part 152 allows for partition of inherited allotments but does not extend partition to other tracts of trust or restricted land or tracts in which fractional interests are held in unrestricted fee status. a. Tribal Land Consolidation Plans Amendments to part 152 add provisions regarding tribal land consolidation plans by providing that the Secretary will approve only: (1) Those exchanges and negotiated sales of tribal land that are made pursuant to an approved land consolidation plan and in which the tribe receives at least 90% of the fair market value or greater; and (2) those exchanges made in the absence of a land consolidation plan in which the tribe receives the fair market value or greater. Part 152 restricts the tribe's use of consideration received from negotiated sales and exchanges in accordance with a tribal land consolidation plan to the purchase of other lands as described in the tribal consolidation plan. These changes from the existing regulation will assist tribes in reducing fractionation and strengthening their land base. A tribal consolidation plan must include the following elements: a description of the land; maps depicting the land to be conveyed and interests to be purchased; an explanation of how the plan will reduce fractionation; and an appropriate tribal authorization. The cost to the tribe of putting together a tribal consolidation plan is estimated to be $2,500. The Secretary is encouraging all Federally recognized tribes to prepare a tribal land consolidation plan. Thus, the total cost resulting from the plan requirement for each of the 562 tribes will be $1.4 million. However, tribes will likely prepare and submit the plans over a period of at least ten years, resulting in an annual cost to tribes of $140,000. This cost is slightly overestimated because some tribes already have a land consolidation plan. b. Tribal Option To Purchase Where Land Is Conveyed in Unrestricted Fee The amendments grant tribes the opportunity to purchase trust or restricted lands being proposed for transfer out of trust or to unrestricted status. The benefit of this provision is that it strengthens tribal land holdings. There are no apparent costs related to this option, as the grantor will receive consideration for the interest being conveyed. Additionally, an exception is provided for those instances where the interest is part of a family farm. c. Consent for Conveyances The amendments provide that an owner may convey his or her fractional interest without the consent of co-owners and that owners of 100% of the interests in a tract do not need the consent of the tribe. These provisions grant individuals the right to control conveyances of their interests. The benefit of these provisions includes strengthening individual Indians' abilities to convey and consolidate fractional interests. The co-owners share in this benefit. Additionally, marketability of the land interests is increased with removal of the consent requirement. There is no cost to these provisions because the land remains in trust status. These amendments also require tribal consent for conveyance of a fractional interest where the tribe has an approved tribal probate code restricting the inheritance rights of the grantee. This provision strengthens tribal control over land within its jurisdiction. No apparent costs are associated with this provision. d. Tribal Tract Purchases The tribal tract purchase amendments implement provisions of AIPRA authorizing the Secretary to convey the fractional interests of any non-consenting trust and restricted owners to a tribe, where the tribe owns at least 50% of the trust or restricted interests in the tract or has obtained the consent of the owners of at least 50% of such interests. These provisions increase tribes' ability to obtain and consolidate fractional interests. Ultimately, this will grant the tribes more economic power through land holdings. Additionally, individual interests held in trust and restricted status are subject to restrictions on transfer. The cost of restricting free transfer without the approval of the Secretary or tribe affects the value of the interest. The value of land is not affected by the percentage of consent required, except to the degree that the time in which transfer occurs may be lessened by reducing the percentage required, thus increasing marketability. e. Consolidation by Sale of Highly Fractionated Tracts Consolidation by sale applies to trust and restricted lands, on or off reservation, that are highly fractionated parcels. In order to consolidate by sale, an eligible applicant must obtain certain consents including consent of the owners of at least 50% of the undivided interests in the parcel. Consolidation of highly fractionated parcels by sale will increase individual Indians’ and tribal land holdings, providing them with greater economic power and use of land. As stated above, individual interests held in trust and restricted status are subject to restrictions on transfer. The cost of restricting free transfer without the approval of the Secretary or tribe affects the value of the interest. The value of land is not affected by the percentage of consent required, except to the degree that the time in which transfer occurs may be lessened by reducing the percentage required, thus increasing marketability. Allowing consolidation by sale is expected to reduce the proportion of highly fractionated interests. The cumulative transfers of property achieved via consolidation by sale is not expected to impact the economy. However, economic benefits are expected to accrue by allowing owners greater economic power and control of the use of their land. f. Partition in Kind This subpart authorizes the Secretary to subdivide trust and restricted land with multiple owners into smaller tracts in which the interests of the owners are unified or consolidated, where the owners have been unable to accomplish such a partition in kind by exchange of deeds. Any owner of a fractional interest may apply to the Secretary for a partition. This new subpart will provide owners with greater control over their land; there is no apparent effect on the economy. g. Eligibility for Conveying and Receiving Individually Owned Interests in Trust or Restricted Status The amendments clarify that individual Indians (or their guardians, etc.) may convey lands and that only tribes, individual Indians, and other co-owners in trust or restricted status may acquire individually owned trust or restricted land. This clarification is made to ensure that individual Indians without a tribal land base are permitted to convey and receive interests in trust or restricted status. This provision will have no economic effect. h. Conveyance of Individually Owned Interests at Less than Fair Market Value The amendments remove restrictions on conveying individually owned interests at less than fair market value, as long as the grantor is provided with information regarding the fair market value. This will increase the ability of individuals to sell their land as they choose. Additionally, these amendments make land interests more marketable by reducing the restrictions on transfer. The cost of obtaining information on fair market value was already required, so the amendments add no new costs [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A06-6622. Public record. Not legal advice.