Indian Trust Management Reform
Federal RegisterNov 13, 2008
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Parts 15, 18, 179
Office of the Secretary
43 CFR Parts 4, 30
RIN 1076-AE59
Indian Trust Management Reform
AGENCY:
Bureau of Indian Affairs, Office of the Secretary, Interior.
ACTION:
Final rule.
SUMMARY:
This final rule amends several Bureau of Indian Affairs (BIA) and Office of the Secretary regulations related to Indian trust management in the areas of probate, probate hearings and appeals, tribal probate codes, and life estates and future interests in Indian land. This rule allows the Secretary to further fulfill his 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).
DATES:
This rule is effective on December 15, 2008.
FOR FURTHER INFORMATION CONTACT:
Michele Singer, Office of Regulatory Management, U.S. Department of the Interior, 1001 Indian School Road, NW., Suite 312, Albuquerque, NM 87104, phone: (505) 563-3805; e-mail:
Michele_F_Singer@ios.doi.gov
.
SUPPLEMENTARY INFORMATION:
I. Statutory Authority
II. Background
A. History of the Rule
B. The Need for This Rulemaking
C. Development of Regulatory Language
III. Overview of Final Rule
IV. Overview of Public Comments
V. Part-by-Part Discussion
A. 25 CFR Part 15—Probate of Indian Estates
1. Public Comments
a. Applicability to Alaska
b. Definitions
c. Claims
d. Timeframes
e. AIPRA
f. Will Drafting and Storage
g. Miscellaneous
2. Changes From the Proposed Rule
3. Distribution Table—25 CFR Part 15
B. 25 CFR Part 18—Tribal Probate Codes
1. Public Comments
a. Applicability to Alaska
b. Adjudication Functions
c. 180-Day Time Periods
d. Single Heir Rule
e. Miscellaneous
2. Changes From the Proposed Rule
C. 25 CFR Part 179—Life Estates and Future Interests
1. Public Comments
2. Changes From the Proposed Rule
3. Distribution Table—25 CFR Part 179
D. 43 CFR Part 4, Subpart D—Department Hearings and Appeals Procedures, Rules Applicable in Indian Affairs Hearings and Appeals
E. 43 CFR Part 30—Indian Probate Hearings Procedures
1. Public Comments
a. Applicability to Alaska
b. Claims
c. Timeframes
d. AIPRA
e. Purchase at Probate
f. Purchase at Probate—Valuation
g. Consolidation Agreements
h. Formal and Summary Proceedings
i. Resources
j. Miscellaneous
2. Changes From the Proposed Rule
3. Distribution Table—43 CFR Part 4, Subpart D, and 43 CFR 4 Part 30
VI. Procedural Requirements
A. Regulatory Planning and Review (Executive Order 12866)
B. Regulatory Flexibility Act
C. Small Business Regulatory Enforcement and Fairness Act of 1996
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 Relationship With Tribes (Executive Order 13175)
K. Energy Effects (Executive Order 13211)
L. Information Quality Act
I. Statutory Authority
Regulatory amendments to these parts are promulgated under the general authority of the American Indian Trust Fund Management Reform Act of 1994, 25 U.S.C. 4001
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, 503-504; 25 U.S.C. 2, 9, 372-74, 410, 2201
et seq.
; 44 U.S.C. 3101
et seq.
25 CFR part 18 5 U.S.C. 301; 25 U.S.C. 2, 9, 372-74, 410, 2201
et seq.
; 44 U.S.C. 3101
et seq.
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
et seq.
43 CFR part 4 5 U.S.C. 301, 503-504; 25 U.S.C. 9, 372-74, 410, 2201
et seq.
; 43 U.S.C. 1201, 1457; Pub. L. 99-264, 100 Stat. 61, as amended.
43 CFR part 30 5 U.S.C. 301, 503; 25 U.S.C. 9, 372-74, 410, 2201
et seq.
; 43 U.S.C. 1201, 1457.
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 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 final rulemaking is to allow the Department of the Interior to better meet its 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 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 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 task force to work on trust reform and reorganization efforts.
From members of this task force, a subcommittee of both tribal
representatives and Department representatives was formed. The subcommittee met regularly to review the “As-Is” processes for performing major trust functions 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. These business goals and objectives provided 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.
On August 8, 2006, the Department published a proposed rule at 71 FR 4517 which addressed the FTM's goals for regulatory changes to the probate process. Today's rulemaking finalizes the proposed rule, with changes addressing comments received during the public comment period.
B. The Need for This Final Rulemaking
Since adopting the FTM, the Department 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 final 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. Many of the regulatory changes within these rules reflect recent changes to the law by the enactment of AIPRA.
C. Development of Regulatory Language
This final rulemaking encompasses tribal and Departmental representatives' efforts who have provided comments throughout the trust reform process. These efforts guided in-house teams in drafting the specific regulatory language. 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.
On December 27, 2005, the Department shared advance copies of the 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 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.
The Department published the proposed rule on August 8, 2006, at 71 FR 45173 and held additional tribal consultations in August 2006.
III. Overview of Final Rule
The final rule amends various parts of the CFR to further implement Indian trust management reform and ILCA, as amended by AIPRA. The Department is not yet finalizing 25 CFR part 150, Indian Land Title of Record, or 25 CFR 152, Conveyances of Trust or Restricted Indian Land, Removal of Trust or Restricted Status; however, the remaining proposed regulations, 25 CFR parts 15, 18, and 179, and 43 CFR parts 4 and 30 are being finalized today. Together, these amendments form an integrated approach to Indian trust management related to probates that allow the Department to better meet the needs of its beneficiaries. The amendments incorporate AIPRA changes to probate, promote consolidation and the reduction of fractionation of interests, and improve service to beneficiaries. The amendments also make changes in accordance with the Plain Language Initiative (63 FR 31885 (June 10, 1998)) to facilitate ease of use and public comprehension.
IV. Overview of Public Comments
As noted above, the Department held tribal consultations on this rule. A court reporter transcribed each comment made orally at these consultations. In addition, the Department received approximately 21 written comments via letter, facsimile, e-mail, and the comment entry form at
http://www.doitrustregs.com
during the formal comment period.
Publication of the proposed rule opened the original public comment period on August 8, 2006 (
see
71 FR 45173). Comments were originally due by October 10, 2006. On November 1, 2006, the Department reopened the comment period for an additional 60 days to January 2, 2007 (
see
71 FR 64181). The Department again reopened the public comment period on January 25, 2007, for an additional 60 days to March 12, 2007 (
see
71 FR 3377).
Public comments ranged from the very general, regarding the Department's approach to tribal consultations, to the very specific, regarding the language used in a particular proposed regulation. The Department reviewed and discussed each written and transcribed comment at intra-Departmental workgroup meetings held in Albuquerque, New Mexico, the week of March 19, 2007, and continued to refine the regulations throughout the following year. Through close coordination among the members, the workgroups drafted changes to the regulations as appropriate to address comments.
V. Part-by-Part Discussion
The following sections provide a summary of public comments on the proposed rule and changes the final rule makes to the proposed rule. The following sections also provide distribution tables showing where general content in the current rule can be found in the final rule, by listing the current CFR sections that the final rule amends and the new CFR sections. For a description of changes made to the preliminary drafts, which were distributed to tribes in December 2005 and incorporated into the proposed rule, refer to the proposed rule at 71 FR 45173 (August 8, 2006).
This preamble does not specifically address all non-substantive changes or editorial wording changes.
A. 25 CFR Part 15—Probate of Indian Estates
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 Osage Nation and the Five Civilized Tribes (Cherokee, Choctaw, Chickasaw, Creek, and Seminole).
1. Public Comments
a. Applicability to Alaska
One commenter requested that the Department clarify the applicability of this part to Alaska. The Department has added such clarification at section 15.1(b).
b. Definitions
Several commenters questioned how eligibility for membership in a tribe is determined in the context of whether someone meets the definition of “Indian.” AIPRA established a new definition of “Indian,” which now includes persons eligible for membership in any Indian tribe. See 25 U.S.C. 2201(2)(A). Part 15 incorporates this new definition in its definition of “Indian” in section 15.2 and by requiring information regarding eligibility for membership in an Indian tribe to be included in the probate file under section 15.202. The tribe determines its own membership. BIA will need information from the tribes on their eligibility requirements; however, BIA will not require tribal certification as to a particular person's eligibility. Once the information is sent to the Office of Hearings and Appeals (OHA), the judge will apply the tribe's enrollment standards during the probate process in order to determine who may inherit. The judge's determination as to eligibility for probate purposes does not affect the tribe's determination as to membership.
One commenter asked whether a person would be considered “eligible for membership” in an Indian tribe if the tribe's code prevents inheritance. Eligibility for membership relates only to the definition of “Indian” under AIPRA and is a separate issue from whether, under a tribe's code, a particular class of people may inherit.
Another commenter suggested adding a definition for “testator.” The Department has added this definition in section 15.2.
Two commenters pointed out that the definition of “trust personalty” in the proposed rule would not include reindeer subject to the Reindeer Act of 1937, as amended, 50 Stat. 900; 25 U.S.C. 500-500n, or fossils removed from trust land over which the Secretary has trust responsibility. The Department has amended the definition of “trust personalty” in the final rule to include personal property that may be subject to Secretarial supervision, such as the “trust reindeer.” This amendment does not expand Secretarial obligations, but merely recognizes existing obligations.
One commenter stated that BIA is mentioned in several headings, but the definition of BIA does not include tribes that are contracting or compacting the probate function. The Department has reviewed the headings to ensure that the more general term “agency” is used when appropriate to include contracting or compacting tribes acting in place of BIA in performing the preparation of the probate package. Additionally, the text of the section clarifies the actor through the use of “we” and “us,” which are defined as including contracting and compacting tribes.
One commenter requested a new definition for “testamentary capacity.” Because testamentary capacity is a determination made by the judge, the Department does not believe a definition is appropriate here.
One commenter noted that, in section 15.201, using the term “we” when identifying who will transfer the probate file to OHA is ambiguous. The Department again points the commenter to the definition of “we” as including contracting and compacting tribes.
c. Claims
One commenter asked whether proposed section 15.202 (final sections 15.302 through 15.305), which allows the use of trust personalty to satisfy claims, also allows land to be sold to satisfy claims against the estate. The answer is no, land interests cannot be sold to satisfy claims against the estate.
Another commenter asked whether statutes of limitations may bar claims against an Indian estate. Statutes of limitations do apply to claims against Indian estates. If the statute of limitations on a claim has already run, the creditor cannot resurrect the claim during probate of the estate.
Certain kinds of claims are barred altogether. For example, claims by States and counties are barred (e.g., if a State seeks reimbursement of welfare assistance). Claims for unliquidated damages or unliquidated claims are barred because the Department does not have jurisdiction to determine those claims or pay them out of trust assets. See 43 CFR 30.143, below.
Several commenters asked whether an assignment of income would be considered a claim or would continue with the land. An assignment is not the same as a debt, but is a manner or method of payment of a debt. Whether an assignment of income survives a decedent, or does not survive a decedent but may be relevant to the allowance of a claim against the estate, depends on the specific language of the assignment and debt instrument. In some cases, an assignment of income is a personal act of the assignor and upon the death of the assignor, the assignment dies. The underlying debt could be the basis of a claim against the estate, if a balance remains unpaid. The final provision at 43 CFR 30.146 makes it clear that claims may be paid only from intangible trust personalty in a decedent's IIM account or due and payable to the decedent on the date of death. However, if the decedent entered into a valid assignment of income from specific identified trust property, if the assignment specifically provides that it survives the decedent, and if the assignment was approved by the Secretary, the trust property affected by the assignment would likely pass subject to the assignment and would not be subject to the limitation that applies to claims. Similarly, trust property that is subject to a mortgage passes to the heirs or devisees subject to that mortgage.
d. Timeframes
Several commenters addressed the current delay in probating Indian estates and requested the inclusion of timeframes for preparation of the probate package by BIA (or the contracting or compacting tribe). During the probate process, many factors can affect the timing, including cooperation by tribes, family members, and probable heirs and the availability of Departmental resources. The Department decided not to include deadlines for preparation of the probate package because each case is unique; some cases require more time to compile the necessary information, while others require less. We have added a timeframe that once the probate package is complete, it will be forwarded to OHA within 30 days (section 15.401).
One commenter stated that the 30-day appeal time provided in section 15.403 is too short given that addresses may change, mail may need to be forwarded, and individuals may not understand the need to speak with a tribal or BIA representative about the implications of a decision. The Department weighed the interests of those who may want to appeal and the potential for circumstances such as those identified by the commenter against the interests of those waiting for distribution of the probated assets. Based on this weighing of interests, the Department determined that 30 days is a reasonable amount of time.
e. AIPRA
Several commenters had miscellaneous questions and comments regarding the statutory language and effect of AIPRA. For example, one commenter expressed concern that
AIPRA may allow interests to be inherited by non-Indians. In response, the Department notes that AIPRA prevents land from leaving trust status through intestacy and points the commenter to the definitions of “Indian” (25 U.S.C. 2201(2)) and “eligible heirs” (25 U.S.C. 2201(9)).
Another commenter requested clarification of the phrase “lineal descendants within two degrees of consanguinity” in AIPRA's definition of “eligible heirs.” A child or grandchild would be a lineal descendant within two degrees of consanguinity of a decedent.
One commenter asked about the threshold for interests to be subject to purchase at probate without consent. AIPRA is clear in stating that consent is not required where the interest passing to the heir intestate is less than 5 percent. See 25 U.S.C. 2206(o)(5). Section 15.202(e)(2) establishes that the probate file will include an inventory of, among other things, interests that represent less than 5 percent of the undivided interest in a parcel.
One commenter suggested that section 15.401, which provides that tribes will receive notice of a prepared probate package only for interests that are less than 5 percent, should include large interests because the tribe may want to exercise a purchase option, particularly where the land might go out of trust or be inherited by a non-tribal member. The tribe can obtain information on ownership of trust interests at any time, pursuant to 25 U.S.C. 2216(e). Additionally, OHA will provide the tribe with jurisdiction with notice of the formal probate proceeding for all probate cases in which the decedent died on or after June 20, 2006, pursuant to 43 CFR 30.213 and 30.214.
A commenter noted that several of the “2 percent or less” interests that escheated to the tribes under the ILCA provision that was ruled unconstitutional in
Youpee
v.
Babbitt,
519 U.S. 234 (1997), have yet to be returned to the estates from which they were taken. This commenter stated that it is difficult to determine whether a decedent's interest is less than 5 percent for the purposes of AIPRA's single heir rule, given that many of these “2 percent or less” interests have not yet been returned. The Department recognizes that this is an issue. The Department is addressing this issue and is tracking progress in returning the “2 percent or less” interests. Nevertheless, the single heir rule is a statutory requirement of AIPRA and not subject to modification in these regulations.
f. Will Drafting and Storage
Two commenters suggested including a provision in part 15 authorizing the use of electronic copies of wills, codicils, and revocations. Probate of electronic wills and related documents is not an accepted judicial practice at this time; however, should it become an accepted practice in the future, the Department will reconsider this suggestion.
Several commenters questioned why the Department is no longer providing will-drafting services to Indians or accepting wills for storage. Part 15 does not address will-drafting services or will storage; however, the Department will address this comment here, given its relevance. The Department's April 21, 2005 policy on wills and estate planning services discontinues the Department's practice of assisting Indians in preparing wills by acting as a scrivener. This policy also discontinues the Department's practice of accepting wills for storage. The Department will continue to store those wills that were in our possession as of April 29, 2005. However, the Department has elected not to exercise our discretionary right to continue accepting and storing any wills not in our possession as of April 29, 2005. A testator may keep his or her will with other important papers or give it to someone else to store safely. Family members or others with access to the will should present it to BIA upon the death of the testator.
A commenter asked to change section 15.3 to eliminate or provide exceptions to the requirement that a person be 18 years of age or over to make a will disposing of trust or restricted land or trust personalty. The Department reviewed this request and determined that the Secretary does not have the authority to change the age requirement because it is statutorily established.
See
25 U.S.C. 373.
g. Miscellaneous
One commenter stated that requiring a birth certificate as part of the probate file creates a hardship. The Department recognizes that many people do not have a birth certificate, and therefore has deleted the requirement for a birth certificate to be included in the probate file.
One commenter suggested amending section 15.202 to require appraisal information as part of the probate file, in support of purchases at probate or settlement agreements. The Department has determined that it is more efficient for OHA to request appraisal information on an as-needed basis than to require an appraisal in support of every probate.
Several commenters asked whether the decedent's family has access to the probate file. Access to the probate file is governed by the Privacy Act insofar as the file contains personal identifying information of living persons, such as heirs or devisees. These commenters also stated that section 15.504 is unclear because the language does not appear to respond to the heading “Who may inspect these records?” The Department has revised the heading to better address the content of this provision.
One commenter asked how often a claim to recover the costs of searching for an absent interest owner by an independent firm would occur, under section 15.106(d). The purpose of this provision is to allow for a determination as to whether an interest owner is deceased, and if so, connect heirs and devisees to property. Whether an estate is charged for a search will depend on the size of the estate. BIA decides whether it will conduct that search in any particular case. Ultimately, OHA will decide on a case-by-case basis whether a search would be chargeable as a cost of administration of the estate.
One commenter noted that part 15 does not address handwritten wills and asked whether the Department will accept them. The Department will accept a will that is handwritten, but it still must meet the minimum formalities of execution: A testamentary instrument signed by the testator, dated, and witnessed by two disinterested adults. See 25 CFR 15.4. The same commenter asked whether tribal notaries may notarize signatures even if the tribe has a statutory option to purchase. The fact that the notary is a tribal employee does not disqualify that person from serving as a notary, because the notary only acknowledges the signatures. However, the two witnesses under section 15.4 must be disinterested.
Several commenters asked whether Mutual Help houses are probated by OHA. “Mutual Help” refers to housing grants from the U.S. Department of Housing and Urban Development administered by Indian housing authorities. There may be circumstances in which a Mutual Help house would be probated by OHA.
2. Changes From the Proposed Rule
The Department amended the title of part 15 to reflect established statutory law that, in effect, exempts members of the Osage Nation from part 15.
To improve the organization, the Department switched the order of subparts C and D, since preparation of the probate file logically comes before
obtaining emergency assistance and filing claims. The Department also moved proposed section 15.505 to final 15.203, and renumbered proposed 15.303 to become final 15.204 and proposed 15.506 to become final 15.505. Proposed section 15.505 relates to information the tribe must provide to complete the probate file, which fits better in subpart C (“Preparing the Probate File”), than with provisions relating to records.
In section 15.1, the Department clarified applicability of the rule to Alaska.
In section 15.2, the Department added definitions for “affidavit” and “testator” in response to a public comment. The Department also clarified that “child” includes natural children, clarified “eligible heir” and “Indian” by adding an “or” in each, clarified “will,” and clarified “you” by defining interested parties as the universe of persons that may be referred to by this term. The Department added a definition for “lockbox” in response to a comment.
In section 15.9, the Department changed the wording to allow a person to either swear or affirm.
In section 15.104, the Department made editorial changes to clarify the requirement for a death certificate or certified copy of a death certificate, and to specify the contents of an affidavit provided in lieu of a death certificate.
In section 15.202 (proposed section 15.302), the Department deleted the reference to BIA's querying sources, since the focus of the section is on the content of the probate file, not BIA's process for assembling the probate file. Final section 15.204 covers BIA's obligation with respect to querying sources.
In section 15.301, the Department deleted paragraphs (c)(2) and (c)(3) because these factors, “the number of potential heirs or devisees” and “the amount of any claims against the estate,” respectively, are not routinely considered in determining whether to approve expenditures from an IIM account to cover burial costs.
In sections 15.302 through 15.305, the Department clarifies how to file claims in formal probate proceedings and summary probate proceedings, in response to comments. The Department clarifies that creditor claims may be filed with the agency (which includes compacting and contracting tribes) before the agency transfers the probate file to OHA. After the file is transferred, claims may be filed with OHA. In any formal proceeding, claims must be filed before the conclusion of the first hearing at OHA. Section 15.305 now also specifies that an affidavit must include a statement as to whether the creditor or anyone on behalf of the creditor has filed a claim or sought reimbursement against the decedent's trust or restricted property in any other judicial or quasi-judicial proceeding, and the status of such action.
Section 15.305(a)(5) is reworded to require the creditor to disclose any evidence that the decedent disputed the amount of the claim.
In section 15.403, the Department adds a cross reference to 43 CFR parts 4 and 30 and restates that, after a judge's decision on rehearing, a person may file an appeal within 30 days of the date of mailing the decision.
In section 15.501, the Department added “OHA” as a source for information on the status of a probate. The Department also removed the telephone number for the Trust Beneficiary Call Center (888-678-6836, ext. 0) in this section and in section 15.103 because any future change in the telephone number would have required a regulatory amendment.
3. 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 final 25 CFR part 15.
Current citation
New citation
Title
15.1
15.1
What is the purpose of this part?
15.2
15.2
What definitions do I need to know?
15.3
Who can make a will disposing of trust or restricted land or trust personalty?
15.4
What are the requirements for a valid will?
15.5
May I revoke my will?
15.6
May my will be deemed revoked by the operation of the law of any State?
15.7
What is a self-proved will?
15.8
May I make my will, codicil, or revocation self-proved?
15.9
What information must be included in an affidavit for a self-proved will, codicil, or revocation?
15.3
15.10
Will the Secretary probate all the land or assets in an estate?
15.4
15.11
What are the basic steps of the probate process?
15.12
What happens if assets in a trust estate may be diminished or destroyed while the probate is pending?
15.101
15.103
How do I begin the probate process?
15.104
Does the agency need a death certificate to prepare a probate file?
15.102
15.102
Who may notify the agency of a death?
15.103
15.101
When should I notify the agency of a death of a person owning trust or restricted property?
15.104, 15.105
15.105
What other documents does the agency need to prepare a probate file?
15.106
15.301
May I receive funds from the decedent's IIM account for funeral services?
15.107
15.107
Who prepares the probate file?
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?
15.106
May a probate case be initiated when an owner of an interest has been absent?
15.201
15.201
What will the agency do with the documents that I provide?
15.202
15.302
May I file a claim against the estate?
15.303
Where may I file my claim against an estate?
15.304
When must I file my claim?
15.305
What must I include with my claim?
15.203
15.202
What items must the agency include in the probate file?
15.203
What information must tribes provide BIA to complete the probate file?
15.204
When is a probate file complete?
15.301
15.401
What happens after BIA prepares the probate file?
15.302
15.402
What happens after the probate file is referred to OHA?
15.303
15.403
What happens after the probate order is issued?
15.401
15.501
How may I find out the status of a probate?
15.402
15.502
Who owns the records associated with this part?
15.403
15.503
How must records associated with this part be preserved?
15.504
Who may inspect records and records management practices?
15.505
How does the Paperwork Reduction Act affect this part?
B. 25 CFR 18—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.
1. Public Comments
a. Applicability to Alaska
At least one commenter noted that Alaska tribes may enact tribal probate codes, but that AIPRA does not apply. Part 18 does not apply to Alaska lands.
b. Adjudication Functions
One commenter asked whether a tribe can contract the probate adjudication functions. While tribes may contract probate file preparation (the BIA function), tribes cannot contract the adjudication function (the OHA function) because the adjudication function—determining ownership of trust land, title to which is held by the United States for the benefit of tribes and individual Indians—is an inherently Federal function. In adjudicating probates, OHA will apply a tribal probate code so long as it is consistent with Federal law and approved pursuant to AIPRA where applicable.
c. 180-Day Time Periods
Several commenters stated that they believe the 180-day period for the Department to review and come to a decision whether to approve the code is excessive. These commenters point out that ILCA, as amended by AIPRA, establishes 180 days as an absolute deadline for the Department to come to a decision, but does not prevent the Department from establishing a shorter timeline. The Department is exercising the authority granted by Congress to take up to 180 days to review tribal probate codes. See 25 U.S.C. 2205(b)(2)(A).
Several commenters stated that they believe the second 180-day period—from approval of the tribal probate code to when the code may become effective—is also excessive. ILCA, as amended by AIPRA establishes that the tribal probate code may not be effective for 180 days following approval to allow tribal members adequate opportunity to amend their wills. See 25 U.S.C. 2205(b)(3). One commenter asked when those provisions of a tribal probate code that do not require Secretarial approval will become effective. Part 18 addresses only those sections of a tribal probate code dealing with trust property. The 180-day time period applies only to the provisions dealing with trust property. All other provisions may become effective at the time prescribed by the tribe.
d. Single Heir Rule
One commenter asked whether tribal probate codes must provide that interests less than 5 percent must pass in accordance with the single heir rule. Section 2205 of ILCA, as amended by AIPRA, says the code must be consistent with the goals of ILCA. One of those goals is to reduce fractionation; therefore, no more than one individual can inherit less than 5 percent of the total undivided ownership in a parcel through intestacy. Under AIPRA, the single heir rule does not apply to interests that are 5 percent or greater or interests devised through a will. The Department also clarified in final section 18.301 that a tribe may adopt a single heir rule without adopting a full tribal probate code. Another commenter noted that ILCA, as amended by AIPRA, allows tribes to adopt a single heir rule that distributes to a different single heir from that designated by statute. The Department clarified this point in final section 18.301. Another commenter asked what timelines apply to single heir rules submitted separately from, or without, a tribal probate code. The Department has added subpart D to address this comment.
e. Miscellaneous
One commenter stated that part 18 should be revised to expressly limit the Department's review of sections of the tribal probate code that govern trust and restricted lands. The Department has added sections 18.103 and 18.203 to clarify which provisions of a tribal probate code are subject to its approval.
At least one commenter questioned whether the commenter's specific tribe may enact a tribal probate code. Congress enacted some statutes specific to tribes. Nothing in AIPRA amends or otherwise affects the application of the tribe-specific laws addressed in 25 U.S.C. 2206(g). However, a tribe may use AIPRA and its Congressionally enacted statute to develop and adopt its own probate code.
Several commenters noted that, in final section 18.106, the provision stating that a tribal probate code must allow an Indian lineal descendant of the original allottee and an Indian who is not a member of the Indian tribe with jurisdiction over the interest in land to “inherit” is inaccurate, because ILCA, as amended by AIPRA, states that the tribal probate code must allow such persons to receive by will (i.e., by devise). The Department agrees with this comment and has incorporated the change in section 18.106(c) and (d).
One commenter stated that the proposed section 18.4, which had stated that the tribal probate code be submitted to the local Bureau official, was not specific enough. The Department has responded by including the specific address to which tribal probate codes should be submitted at section 18.105, and has changed the recipient to Central Office rather than local Bureau officials.
A few commenters requested more guidance as to what parts of a tribal probate code are subject to Secretarial approval. Final part 18 clarifies that only those tribal probate codes containing provisions regarding the descent and distribution of trust or restricted lands require and are subject to Secretarial approval. The Department published a model tribal probate code in the
Federal Register
to provide suggested guidelines for tribes considering the creation and adoption of a tribal probate code containing provisions applicable to trust and restricted property.
See
72 FR 54674 (September 26, 2007).
One commenter stated that proposed 25 CFR 18.3(c)(2) was inconsistent with AIPRA. The commenter pointed out that this regulation allowed a spouse or a lineal descendent of either the testator or the original allottee to reserve a life estate. The commenter noted that including descendents of the original allottee in 25 CFR 18.3(c)(2) as eligible to reserve a life estate under a tribal probate code expands the class of persons contemplated by AIPRA. The Department agrees with this comment and has deleted the reference to descendents of the original allottee in 25 CFR 18.3(c)(2).
AIPRA does not allow a tribal probate code to prohibit the devise of an interest in trust or restricted property to an
Indian lineal descendent of the original allottee or an Indian who is not a member of the tribe with jurisdiction over the interest in land unless the following conditions are met: (1) The code allows those individuals to renounce their interests to eligible devisees in accordance with the tribal code; (2) the code allows a devisee spouse or lineal descendant of the testator to reserve a life estate without regard to waste; and (3) the code requires the payment of fair market value as determined by us on the date of the decedent's death. The final rule complies with AIPRA. The relevant provisions are now found at 25 CFR 18.106(c) and (d).
2. Changes From the Proposed Rule
The Department reorganized the proposed rule, by separating into three distinct subparts provisions related to tribal probate codes, amendments to tribal probate codes, and single heir rules submitted separately from tribal probate codes. This reorganization should allow users to more readily locate the provisions they are interested in.
The Department also changed who tribes should submit their tribal probate codes to, requiring them to submit to Central Office, rather than local Bureau officials. This allows a specific address to be included, as requested by a commenter. The Department also added several additional sections for further clarification. For example, the Department added a new section 18.1 to make the purposes of part 18 explicit. The Department also clarifies that a tribe must obtain approval of the tribal probate code only if the code governs descent and distribution of trust and restricted lands (see final sections 18.101 and 18.102). The Department added a new section 18.103 to clarify which provisions of a tribal probate code are subject to the Secretary's approval.
In response to comments, the Department added a new subpart D to clarify that a tribe may enact a single heir rule without enacting a tribal probate code and to clarify the approval timeline for a single heir rule that is not part of a tribal probate code.
To make the approval process more transparent, the Department also clarified what the Secretary will consider in the approval decision (see final section 18.106) and the procedure for obtaining Secretarial approval of amendments to tribal probate codes (see subpart C).
The Department deleted proposed 18.12(b) regarding appeals of a denial by the Assistant Secretary—Indian Affairs to the Board of Indian Appeals because the Board generally lacks authority to review decisions of the Assistant Secretary, and even if such authority were granted, the time limits imposed by AIPRA essentially exclude the possibility of review by the Board.
In final sections 18.110, 18.207, and 18.306, the Department clarifies when a tribal probate code, amendment, and single heir rule, respectively, becomes effective if it is approved by the Department's inaction.
Note:
A distribution table is not included here because these provisions are new.
C. 25 CFR Part 179—Life Estates and Future Interests
This part sets forth the authorities, policy, and procedures governing the administration by the Secretary of life estates and future interests in Indian lands. Many of the provisions are effective only in the absence of language to the contrary in the document creating the life estate (i.e., probate order or conveyance document).
1. Public Comments
The public comments on proposed 25 CFR part 179 overwhelmingly objected to the proposed revisions as confusing. The public comments stated that such confusing language makes it difficult for people to ensure that their property will be distributed in accordance with their intent when their will or conveyance includes life estates and future interests. For this reason, the Department has decided not to adopt most of the changes it proposed, with a few exceptions.
Commenters also objected to the apparent prohibition on successive life estates. The Department has decided not to adopt the proposed changes that would have prohibited successive life estates.
Additionally, several commenters objected to the provisions at proposed section 179.8 stating that members of a class are determined at the time a conveyance document is approved or at the death of decedent. Commenters objected to these provisions because ILCA, as amended by AIPRA, explicitly states that the time for ascertaining a class is the time the devise is to take effect in enjoyment. Likewise, commenters objected to proposed section 179.7 establishing that the Department will determine whether a condition is satisfied upon the Department's approval of the conveyance document or upon the death of the decedent. The Department has not adopted these proposed provisions.
Commenters also objected to limiting rights to dispose of property in probate or by gift. The Department has decided not to adopt the changes it proposed that would have limited rights to dispose of property in probate or by gift.
One commenter asked whether mineral rights could be given as a life estate, without rights to the surface. In a will, a testator may devise a life interest in the mineral estate and may define the extent of damage the life tenant may do. This rule only establishes guidelines in the absence of the language in the document establishing the life estate.
Another commenter asked whether a person holding a life estate “without regard to waste” is entitled to harvest timber without the consent of the remaindermen. The Department has added a new section 179.202 to address this and other situations regarding depletion of resources.
A few commenters asked about the meaning of the phrase “without regard to waste.” AIPRA established the definition and the Department is bound by its applicability.
2. Changes From Proposed Rule
As stated above, in response to comments, the Department has not adopted most of the changes it proposed, with a few exceptions. In section 179.1, the Department clarified the scope and purpose of part 179, establishing three separate subparts. In section 179.2, the Department reinserted a definition for “agency,” clarified that agency includes compacting and contracting tribes, and retained an amended version of “life estate.” In addition, the Department added definitions for “life estate without regard to waste” and “rents and profits.” In section 179.3, the Department clarifies the application of law to include AIPRA. The Department also added a new section 179.4 to clarify how a life estate terminates.
The Department has retained the proposed use of Actuarial Table S in proposed section 179.13 (now in final section 179.102) rather than the table in the currently effective version of part 179, and has retained the explanatory paragraph stating that the Department will periodically review and revise the rate of return. The Department has also retained a revised version of the provision in proposed section 179.12(b) (now in final section 179.201) establishing distribution for life estates without regard to waste.
The Department has deleted proposed provisions related to classes and proposed provisions regarding the privileges and responsibilities of a life
tenant. The Department also deleted proposed section 179.11, regarding how a future interest holder can stop a life tenant from damaging or substantially diminishing the future interest, because the Department is already authorized as trustee to take action where appropriate.
3. 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 final 25 CFR part 179.
Current citation
New citation
Title
179.1
179.1
What is the purpose of this part?
179.2
179.2
What definitions do I need to know?
179.3
179.3
What law applies to life estates?
179.4
When does a life estate terminate?
179.4
179.101
How does the Secretary distribute principal and income to the holder of a life estate?
179.5
179.102
How does the Secretary calculate the value of a remainder and a life estate?
179.6
179.5
What documents will the BIA use to record termination of a life estate?
179.201
How does the Secretary distribute principal and income to the hold of a life estate without regard to waste?
179.202
Can the holder of a life tenancy without regard to waste deplete the resources?
D. 43 CFR Part 4, Subpart D—Department Hearings and Appeals Procedures, Rules Applicable in Indian Affairs Hearings and Appeals
Currently, subpart D of 43 CFR part 4 addresses how OHA probates a trust estate after receipt of the probate file that BIA prepares under 25 CFR part 15. The amendments relocate the probate hearing procedures to a new part 30 and amend these procedures to improve clarity and to include new provisions implementing ILCA, as amended by AIPRA. See the discussion of these changes below.
E. 43 CFR Part 30—Indian Probate Hearings Procedures
This newly established part addresses probate hearing procedures.
1. Public Comments
a. Applicability to Alaska
One commenter requested that the Department clarify the applicability of this part to Alaska. The Department has added such clarification at section 30.100(c).
b. Claims
One commenter asked whether legal notice to creditors is still required, and noted that the BIA staff will not know the deadline for submitting claims, since it is now the date of the first hearing. Creditors will receive constructive or actual notice by OHA of the first hearing, either by posting of the notice of hearing or by mailing of the notice to creditors whose claims were presented to BIA prior to transfer of the probate file to OHA. Creditors may still file their claims with the BIA prior to transfer of the probate file to OHA, and BIA staff will know whether the file has been transferred, in which case they can refer the creditor to OHA for more information about the filing.
One commenter asked whether a mortgage is a claim against an estate. The Department treats the mortgage as an encumbrance on the land. The trust property will pass through the estate encumbered by the mortgage.
Several commenters asked whether various loans or assignments would be considered claims against the estate. See the discussion of “Claims” under 25 CFR part 15, above, for information on assignments. One commenter asked specifically whether a loan for which a lien on farming equipment is placed would be a claim in probate. A loan secured by farming equipment is not a trust probate issue because the equipment is not trust property. Under these regulations, the creditor must exhaust the security and must show evidence of any balance due after the exhaustion of the security before making a claim against trust assets. See final 25 CFR 15.305(c) and 43 CFR 30.141. Another commenter asked specifically whether claims for child support or alimony are claims against an estate. If liquidated under the applicable State or tribal law, claims for alimony or child support may be considered as general claims against the estate.
One commenter objected to section 30.144 to the extent it would allow BIA to petition for costs of administering an estate because it is BIA's trust responsibility to do so. This section allows the judge the discretion to authorize payment of costs of administering the estate where the judge deems it appropriate under specific circumstances; the Department does not anticipate that judges will routinely authorize payment to BIA.
One commenter recommended changing the word “personalty” to “funds” in section 30.146 because money generated after the date of death is generated from the land and goes with those heirs vested in the land. The Department agrees that money generated after the decedent's death belongs to the heirs or devisees, but it is still “trust personalty.” Trust personalty that accrues after the date of the decedent's death from trust or restricted property is not available for payment of claims against the estate.
The discussion of comments on claims under 25 CFR part 15, at section V.A(1)(c) of this preamble, above, provides additional information on probate claims.
c. Timeframes
Several commenters suggested adding timeframes to various parts of the probate process, including when OHA receives the probate file from BIA, notifies potential heirs or devisees, takes action to complete an incomplete probate file, provides notice of the hearing, schedules and holds hearings, and allows document discovery. One commenter suggested that certain classes of probate cases should be completed within certain timeframes. The Department decided not to add timelines for adjudication of probate estates because each case is unique, some requiring more time and some requiring less. During the probate process, many factors can affect the timing, including cooperation by tribes, family members, and probable heirs and devisees and the availability of Departmental resources.
A few commenters stated that the 30 days provided for filing a notice of appeal in 4.321 is not long enough because someone may not know of the decision in time, or decide to appeal in time. The Department weighed the interests of those who may want to appeal against the interests of those waiting for distribution of the probated assets and determined that 30 days was an appropriate time period. Provisions have been added to the regulations requiring the deciding official to give notice to the parties of their rights to further review or appeal, and providing that the review or appeal period runs
from the mailing of a notice, decision, or order (i.e., one that includes accurate appeal information).
d. AIPRA
One commenter asserted that AIPRA conflicts with the Indian Child Welfare Act regarding adopted-out children. AIPRA does not necessarily cut off the rights of adopted-out heirs. Even though a child has been adopted out by the mother (in this case, if the mother gave the child up for adoption), if the grandmother continued to maintain a relationship with that child, the child could inherit from the grandmother. See 25 U.S.C. 2206(j)(2)(B)(ii) and (iii). Another commenter stated that AIPRA's “adopted-out heirs” provisions are too vague. The regulations reflect AIPRA as enacted; however, tribes may adopt tribal standards for inheritance by adopted children in their tribal probate codes.
One commenter asked whether interests owned by persons who do not respond to notices may be sold without their consent. AIPRA allows certain interests to be sold during probate without the consent of the owner. See 25 U.S.C. 2206(o), as implemented by 43 CFR part 30, subpart G (Purchase at Probate).
One commenter asserted that abusive spouses should not be eligible to inherit. AIPRA provides no basis for disinheriting an abusive spouse, except in the extreme case where death results. Under 25 U.S.C. 2206(i), any person who knowingly participated, either as a principal or accessory before the fact, in the willful and unlawful killing of the decedent may not take any inheritance or devise.
One commenter asked how AIPRA affects mineral rights. AIPRA governs the descent and distribution of mineral rights to the same extent as other property rights.
Several commenters suggested that the Department has the ability to interpret AIPRA, in support of various regulatory changes. The Department has based these regulations on AIPRA, as enacted.
e. Purchase at Probate
Several commenters expressed concern regarding the purchase at probate provisions allowing interests to be sold without the owner's consent. ILCA, as amended by AIPRA, authorizes the sale without consent of interests passing intestate that represent less than 5 percent of the entire undivided ownership in the parcel. See 25 U.S.C. 2206(o)(5). One commenter asked whether such a sale without the owner's consent is constitutional. These regulations implement the statute as enacted. The Department notes that all sales under these regulations require that the owners be compensated at fair market value.
Another commenter stated that the sale of property, even property of small economic value, without the owner's consent is contrary to well-established principles of property law and, as such, should be strictly limited. This commenter stated the concern that section 30.163 is an ill-concealed effort to increase the number of forced sales at probate. As previously stated, the regulations interpret AIPRA as enacted, which allows for purchase without consent of an interest passing by intestate succession, where the “interest passing to such heir represents less than 5 percent of the entire undivided ownership of the parcel.” See 25 U.S.C. 2206(o)(5).
Another commenter noted that, in some areas, even an interest less than 5 percent may be very profitable and stated that such interests should not be subject to purchase at probate without the owner's consent. The regulations interpret AIPRA as enacted, which allows purchase at probate of interests of less than 5 percent without the owner's consent; however, the production of income from an interest would be considered in arriving at a valuation in the purchase at probate process. Valuation can be contested by interlocutory appeal before the interest is ordered sold. See 43 CFR 30.169.
A few commenters expressed concern that a sale of an interest is not actually taking place during the probate because the heir or devisee only has an expectancy, and his or her ownership in the interest does not vest until the final probate order. According to one of these commenters, the regulation creates a “fictional interest” (because the interest is merely an expectancy). The regulations apply the purchase at probate provisions of AIPRA as enacted. AIPRA does not distinguish between an expectancy and vested interest for the purposes of purchases at probate.
Several commenters expressed dissatisfaction with the fact that whether an interest may be purchased without the owner's consent is measured by what percentage interest passes to the heir, rather than what percentage interest the decedent owned. In other words, these commenters believe that purchase without consent should be allowed only where the decedent owned a less than 5 percent undivided interest, rather than where the heir receives a less than 5 percent interest. For example, if a decedent owns a 20 percent interest and has five heirs, each receiving a 4 percent interest, then the concern is that the entire 20 percent interest would be subject to purchase at probate without those heirs' consent. The Department agrees that this situation could occur. The regulations apply AIPRA as enacted, which allows for purchase without consent of an interest passing by intestate succession, where the “interest passing to such heir represents less than 5 percent of the entire undivided ownership of the parcel.” See 25 U.S.C. 2206(o)(5).
One commenter asked when any relevant appraisal information for a purchase at probate would be obtained by interested parties. BIA or the judge will order an appraisal or other valuation when a request for purchase is submitted.
A few commenters stated that the 30 days provided for filing a notice of objection to an appraisal in section 30.169 is not long enough. The Department weighed the interests of those who may want to object against the interests of those waiting for distribution of the probated assets and determined that 30 days was an appropriate time period. Many of these same commenters stated that the 30 days should be measured from the date of receipt, rather than the date of mailing, of the notice. The Department decided against measuring from the date of receipt because of the cost of various methods of delivery confirmation (certified or registered mail or priority mail with delivery confirmation). The Department therefore clarified that time periods are measured from the date of mailing in this section, as well as in other sections throughout this part.
One commenter asked whether a deed would be drafted as part of the purchase at probate process. The probate order would take the place of the deed in the purchase at probate.
One commenter asked whom the Department will notify of a purchase at probate. Section 30.165 establishes whom the Department will notify of a request to purchase at probate. A commenter also asked how persons who are eligible to purchase at probate are notified of an estate. OHA notifies devisees, eligible heirs, and the tribe by mailing and co-owners by posting. Additionally, ILCA, as amended by AIPRA, provides all co-owners and the tribe with the right to request ownership information to track interests they would like to purchase.
One commenter asked whether the consent of the co-owners of an interest is required before purchasing an interest at probate. Consent of the co-owners is not required for a purchase at probate.
One commenter noted that purchases at probate have the potential to slow down the probate of an estate considerably, especially where a request to purchase is brought before OHA shortly before issuance of the final order. This commenter asked if the process could be handled by the regional BIA Realty office, instead of OHA. The purchase at probate process, as established by AIPRA, may occur only during adjudications of an estate by OHA. See 25 U.S.C. 2206(o).
One commenter expressed some confusion over the process for transferring title in a purchase at probate in section 30.173. This commenter thought that OHA was to issue an order to LTRO to transfer title, and was concerned that the title may not transfer in a reasonable time. In fact, the probate order transfers the title, while recordation in the LTRO provides notice of the new ownership.
One commenter expressed concern that a non-Indian may purchase at probate. The regulations establish who qualifies as an “eligible purchaser” at section 30.161, in accordance with AIPRA.
One commenter asked what happens to an interest if nobody purchases the interest at probate. Interests not purchased at probate will pass to the heirs according to AIPRA or the applicable probate code, or to the devisees according to the will.
One commenter noted that sections 30.260 to 30.274 refer to tribes authorized under particular statutes governing purchases and asked whether there will be a separate section for other tribes seeking to purchase interests at probate. Other tribes may purchase at probate pursuant to subpart G of 43 CFR part 30.
f. Purchase at Probate—Valuation
Several commenters objected to the proposed provision stating that an appraisal of the market value of the interest to be sold at probate must be based on an appraisal that gives appropriate consideration to the fractionated ownership interest in the parcel. One commenter objected to the language because it sets up a framework that prevents beneficiaries from receiving the highest possible value for their land, which is inconsistent with the Department's trust responsibilities. This commenter would support language stating that the appraisal is “without consideration of the fractionation of ownership of the parcel.” The Department revised the language, in final section 30.167(b), to clarify that the market value of the interest to be sold at probate must be based on an appraisal that meets the standards in the Uniform Standards for Professional Appraisal Practice (USPAP), or on an alternate valuation method developed by the Secretary.
Another commenter stated that taking fractionation into account in the appraisal may mean that some interests will have no value. According to this commenter, this valuation method may also mean that an appraisal of a 160-acre allotment that is heavily fractionated will result in a discounted value for the whole parcel, even for large interest holders within that parcel. This commenter stated that the valuation method may depreciate the appraised value of Indian trust lands as a whole, whether fractionated or not, and whether owned by an individual or the tribe. This commenter also stated that discounted values for fractionated parcels may affect the value of both trust and fee parcels that are not fractionated, since appraisals are based upon the sale and prices of comparable parcels, potentially reducing the net value trust lands as a whole, and adversely impacting the utility of using the parcel as collateral or security for loans.
The Department revised sections 30.167 and 30.168 to reflect the Secretary's decision to use valuation methods conforming to USPAP standards or an alternative valuation method in accordance with 25 U.S.C. 2214.
The Secretary's authority to develop and use an alternate method of valuation of Indian trust property is set forth in AIPRA:
For purposes of this chapter, the Secretary may develop a system for establishing the fair market value of various types of lands and improvements. Such a system may include determinations of fair market value based on appropriate geographic units as determined by the Secretary. Such system may govern the amounts offered for the purchase of interests in trust or restricted lands under this Act.
25 U.S.C. 2214. To date, the Secretary has not exercised this authority. However, we have included references to the Secretary's section 2214 authority in the regulations at 43 CFR 30.167(b) and 30.265(a)(3) to allow for the use of an alternate valuation method if and when one is developed in the future. Development of such an alternate system of valuation of Indian trust lands will be done through a notice and comment process, with tribal consultation.
g. Consolidation Agreements
One commenter asked what documentation OHA will require as proof of ownership of an interest to be included as part of a consolidation agreement. OHA will require a title status report from the Land Title and Records Office as proof of ownership.
At least one comment questioned whether interests not included in the estate may be included in a consolidation agreement at probate. Interests already owned by heirs or devisees may be included in a consolidation agreement pursuant to section 30.151; however, persons who are not party to the probate may not enter into the consolidation agreement.
h. Formal and Summary Proceedings
Several commenters asked whether 43 CFR part 30 eliminates informal proceedings. The revised regulations delete the informal process, which had been handled by an Attorney Decision Maker. The revised regulations provide a formal process for all cases involving land and a summary process for cases involving only money (no land) totaling less than $5,000. In a related comment, one commenter asked whether law clerks will be adjudicating estates. Attorney Decision Makers, who are not law clerks, but rather, attorneys, may handle summary proceedings; formal proceedings will be handled by Administrative Law Judges and Indian Probate Judges, not law clerks.
One commenter requested clarification that section 30.200, regarding summary proceedings, applies only to estates not exceeding $5,000 cash held in individual Indian money (IIM) accounts. This commenter also requested clarification that summary proceedings will not be held for any estate containing an interest in land, no matter how small. The commenter is correct on both counts.
i. Resources
Several commenters mentioned resource issues with the LTRO, educating Indians about their estate planning options and consolidation options as heirs and devisees, and obtaining appraisals. The Department has considered and noted these resource issues.
j. Miscellaneous
One commenter suggested moving all the substantive provisions regarding purchase at probate and settlement and consolidation agreements from 43 CFR part 30 to 25 CFR part 15. The Department has decided to retain these provisions in 43 CFR part 30 because OHA, rather than BIA, will be handling purchases at probate and settlement and consolidation agreements. Title 43 addresses OHA procedures, while Title 15 addresses BIA procedures.
A few commenters asked how tribal probate codes fit into OHA's adjudication of an estate. Under AIPRA, tribes may develop their own probate codes and submit them to the Secretary for approval. OHA will apply any approved tribal probate code in the probate of trust estates governed by that code.
One commenter questioned what types of documents are needed if American citizenship is in question. OHA will determine whether evidence is sufficient to establish citizenship on a case-by-case basis.
One commenter stated that 30.123(a)(1) improperly authorizes administrative law judges to determine the tribal membership status of heirs and devisees. OHA's determination of who qualifies as an Indian and eligible heir is solely to determine who can inherit in trust. The Department applies the tribe's criteria to determine eligibility. OHA's determination does not affect the tribe's decision as to enrollment.
One commenter noted that a tribe may have property ownership as a condition for membership, and that people may not be able to become members of the tribe until they inherit from the probated estate. Rights to inherit an interest vest on the date of decedent's death and ownership relates back to the date of decedent's death.
One commenter asked whether a tribe can state that someone is not eligible to inherit. A tribe may establish who is eligible to inherit pursuant to an approved tribal probate code. Please refer to the model tribal probate code published by the Department on September 26, 2007 at 72 FR 54678.
One commenter asked how OHA will obtain the mailing addresses of co-owners to provide notice. Currently, OHA obtains mailing addresses from BIA. BIA uses the Department's Trust Asset Accounting Management System (TAAMS) to maintain names and addresses of co-owners in trust and restricted property.
A few commenters noted that section 30.242 allows a person claiming an interest in the estate to file a petition for reopening, but that BIA files many, if not most, petitions for reopening. The Department has revised section 30.242 to explicitly state that the agency (BIA or a compacting or contracting tribe) may also file a petition for reopening.
One commenter expressed concern with regard to section 30.121, allowing the appointment of masters. This commenter's concern is that the masters will be untrained. Masters will be appointed only based on specific expertise in the subject matter at issue in a particular case.
One commenter stated that persons should not be allowed to renounce an inherited interest or devise unless they first obtain an appraisal of the interest to be renounced. AIPRA does not require an appraisal for renunciation. A person considering renunciation may either request an appraisal or waive the right to an appraisal.
One commenter asked what the “applicable law” is, as stated in the definition for “minor.” The applicable law could be tribal law, State law, or Federal law, depending on which law applies to the particular issue at hand.
One commenter asked what the timeframe is for presuming someone to be deceased. For the purposes of probating trust and restricted property, the timeframe for presuming someone to be deceased is 6 years from the last contact with any person. A proceeding to determine whether a missing person is deceased may be initiated in accordance with 43 CFR 30.124.
One commenter asked the status of persons who qualify as Indian but who are incarcerated. Trust beneficiaries in prison are still entitled to notice. They are entitled to make wills. They may not be able to attend the hearing in a probate case, but they are entitled to have notice of the hearing. In an appropriate case, they may be able to submit written testimony or testify by deposition or telephone.
One commenter asked for clarification of the term “lockbox.” The Department added a definition for this term at section 30.101 and in 25 CFR 15.2.
One commenter asked whether the tribe will receive an inventory of interests to be probated in any given estate. The tribe may request a copy of the inventory from the agency before the probate file is transferred to OHA or from OHA once it has received the file from the agency.
One commenter asked that tribes be permitted to establish a specific address for receipt of notices of probate proceedings. OHA will provide notice to one address of record per tribe; however, tribes can establish their own internal mail routing procedures.
One commenter presented a factual situation in which property was omitted from an estate, and asked how OHA handles that situation. Property omitted from an estate is added and distributed pursuant to section 30.126.
2. Changes From Proposed Rule
43 CFR Part 4
In section 4.200(a), the final regulations delete the first entry in the table, “All proceedings in subpart D.” The final regulations also amend this table by adding “4.201” as a reference for “Appeals to the Board of Indian Appeals from decisions of the Probate Hearings Division in Indian probate matters” and “Appeals to the Board of Indian Appeals from actions or decisions of BIA” in the second and third rows of the table. The final regulations add a new fourth row to the table stating that sections 4.201 and 4.330 through 4.340 should be consulted for provisions relating to “Review by the Board of Indian Appeals of other matters referred to it by the Secretary, Assistant Secretary—Indian Affairs, or Director—Office of Hearings and Appeals.”
In section 4.201, the final regulations amend the definition of “Board” by deleting superfluous language. The final rule adds a definition for “Decision or Order,” amends the definition of “heir” to simplify language, and amends the definition of “interested party” to more generally refer to a “decedent's” estate, rather than an “Indian's” estate. The definition of “Indian probate judge” is amended to delete “licensed” before attorney, since an attorney must be licensed and the deleted word is unnecessary. The definition of “judge” is amended by clarifying that “judge” means an Administrative Law Judge or Indian Probate Judge (IPJ) except when used in the term “administrative judge.”
In section 4.320, the heading and text are changed to more generally apply to a judge's decision or order issued under 43 CFR part 30. The final rule adds that an appeal may be taken from any modification of the inventory of an estate. This does not change the scope of coverage set out in section 4.320.
In section 4.321, the final rule clarifies that the 30-day time period is measured from the date of mailing of the judge's order or decision.
In section 4.324, the final rule clarifies LTRO procedures by adding that the LTRO must certify that the probate record is complete before forwarding the certified record to the Board, must include the original of the transcript in the record and make a copy of the transcript for the duplicate record, and must prepare a table of contents for the record. The final rule also clarifies that, for interlocutory appeals or appeals related to modification of an inventory or determining that a person for whom a probate proceeding is sought to be opened is not dead, the judge must prepare the administrative record and table of contents.
Section 4.325 carries through the clarifications made in section 4.324 by
distinguishing between the probate record and the administrative record and adding a reference to the table of contents.
4 CFR Part 30
4 CFR Part 30—Subpart A
In section 30.100, the final rule updates section references. The final rule also adds a new paragraph (c) to 30.100 identifying those provisions that do not apply to Alaska.
In section 30.101, the final rule revises the definitions of “Board” to be consistent with section 4.201. The final rule adds new definitions for “affidavit,” “deposition,” “discovery,” and “interrogatories.” While the meaning of these terms is generally understood, the Department added definitions for clarity. Additionally, the Department added definitions for “lockbox” and “master,” in response to comments. The final regulations also clarify several definitions, including “agency” to include the BIA agency office having jurisdiction over trust financial assets; “attorney decision maker” and “Indian probate judge” to change “licensed attorney” to simply “attorney,” since all attorneys must be licensed; “child” to explicitly include natural children; and “summary probate proceeding” to replace “trust personalty” with “IIM account.” The definition of “trust personalty” is amended to include “tangible personal property” in response to comments regarding trust personal property beyond funds and securities (e.g., “trust reindeer”). Minor wording changes are made to the definitions of “decision or order,” “heir,” “IIM account,” “Indian,” “intestate,” “lockbox,” “per stirpes,” “we or us,” “will,” and “you.”
43 CFR Part 30—Subpart B
In section 30.114, the final rule clarifies that notice of a formal probate proceeding will be sent to only those creditors whose claims appear in the probate file.
The final regulations amend section 30.115 to replace “probate file” with “probate record.” The probate file may include judge's notes and attorney work product, while the probate record is available for inspection by the public.
43 CFR Part 30—Subpart C
The final rule adds a new paragraph (b) to section 30.120, specifying that the judge has authority to “determine whether an individual will be deemed to be dead by reason of unexplained absence.” This authority has been placed in the “authority” section in the final rule for clarity.
The final rule amends section 30.122 to measure the 30-day period from the date of mailing in accordance with the Department's determination that the date of mailing is the necessary starting point for practical purposes and for consistency with other sections' time measurements. The final regulations also clarify that the judge may make new findings of fact based on evidence in the record, and may make findings of fact and conclusions of law when hearing the case de novo.
In section 30.123, the phrase “if relevant” has been added to clarify that the judge will not determine nationality or citizenship unless it is an issue. These determinations are needed only when a foreign national stands to inherit, usually a Canadian or Mexican.
The final rule deletes proposed paragraph (a)(5) of section 30.125, which gave judges authority to “address any other error deemed by the judge sufficient to order the case to be reopened.” The Department determined this provision was overly broad.
Section 30.126 (“What happens if property was omitted from the inventory of the estate?”) has been amended to clarify that BIA may not administratively modify an estate, but only a judge may modify an estate through a modification order and that the modification order may be appealed. The final rule also adds paragraph (c) clarifying what the judge's decision or modification order must include and when a judge's modification order becomes final. The appeal procedures parallel those for challenging a decision that property was improperly included in the inventory of an estate in section 30.127.
The final rule, in section 30.127, adds language in paragraph (a) that the petitioner must notify parties whose interests may be affected by the modification. The final rule also breaks proposed paragraphs (c) and (d) of section 30.127 into several paragraphs and adds clarifying language in final paragraph (d) regarding the deadline for filing an appeal, and in final paragraph (e) that the judge (not BIA) forwards the record of all proceedings to the LTRO.
In section 30.128, the Department clarifies that an erroneous recitation of acreage alone shall not be considered an improper description.
43 CFR Part 30—Subpart D
The Department deleted several sections in this subpart to simplify the language regarding recusal of judges or ADMs, since this subject is already covered in 43 CFR 4.27(c).
43 CFR Part 30—Subpart E
In sections 30.140 and 30.141, the final regulations provide for a single process and specification of requirement for filing claims by reference to 25 CFR 15.302 through 15.305. Section 30.140 sets firm deadlines for filing claims against an Indian trust estate, regardless of whether a creditor has actual or constructive notice of either the decedent's death or the probate proceedings. The existing regulations at 43 CFR 4.250(a) set an initial deadline for filing claims of 60 days from the date BIA received verification of the decedent's death, but they provide an additional 20-day window for creditors who were not chargeable with notice in time to meet the initial deadline. Under the rule being promulgated today, for formal probate proceedings, all claims must be filed before the conclusion of the first hearing. For summary probate proceedings, different deadlines apply depending on the nature of the claimant, but the deadlines are firm, without regard to whether a claimant has notice of the probate proceedings.
As an exercise of the Secretary's broad rulemaking authority with respect to Indian probates under 25 U.S.C. 372 and 373, the Department for many years has made funds in Indian trust estates subject to the payment of creditor claims. Were it not for the Secretary's regulations, creditors would have no right to assert claims against Indian trust assets, including individual Indian trust funds. In this final rule, the Department has decided to (1) limit the funds available for the payment of claims to those that are on deposit or have accrued on the date of a decedent's death, and (2) create fixed deadlines for filing claims against the Indian trust estate.
The Department recognizes that, for creditors who do not have notice of the probate proceedings, this rule effectively cuts off their ability to file a claim against the decedent's trust funds. However, no such legal right independently exists. In order to ensure that all issues, including claims, can be addressed at the first (and typically only) hearing, and that a decedent's trust funds can be distributed promptly following the conclusion of the proceedings, the Department has decided to create fixed deadlines for filing claims and to make them applicable to all creditors.
Section 30.143 deletes “not properly within the jurisdiction of OHA” from paragraph (c) and “or any of its political subdivisions” from paragraph (d) as superfluous. Section 30.143 also includes several clarifying changes to
more explicitly define when claims will not be allowed.
A phrase has been added to section 30.145, to clarify that a claim may be reduced only if the judge determines it is unreasonable.
In section 30.146, the final regulations make changes necessary to clarify that only intangible trust personalty may be used to satisfy claims. The Department also deleted proposed paragraph (b) because it was merely the converse of (a), and therefore redundant.
In section 30.147, the final regulations delete the phrase stating that claims may be disallowed in their entirety because, if necessary, claims will be paid on a pro rata basis. The judge still has the authority, as set out in section 30.145 to disallow a claim in its entirety.
43 CFR Part 30—Subpart F
The Department did not make any significant changes to subpart F in the final rule.
43 CFR Part 30—Subpart G
Section 30.160 has been amended to reflect that purchase at probate is available for estates of decedents who die on June 20, 2006, as well as those who die after this date.
The final regulations amend section 30.167 to clarify that an interest will be sold by purchase at probate to the highest eligible bidder only if a request has been made, and an eligible bidder submits a bid in an amount equal to or greater than fair market value. The provision regarding the basis for market value has been moved from section 30.168 to section 30.167(b). The final regulations also delete the phrase “which gives appropriate consideration to the fractionated ownership interests in the parcel” in this provision.
The final regulations amend the heading in section 30.168 for clarification. Section 30.170(b) incorporates the requirement for the record's table of contents. The final regulations add a new 30.175 to clarify when an interest vests in a purchaser.
43 CFR Part 30—Subpart H
The citation to AIPRA has been removed from section 30.181 as unnecessary and to avoid the potential for confusion. The final regulations also delete superfluous language.
The final regulations correct section 30.182 by replacing “testator” with “decedent” in paragraph (a), and reorganize paragraphs (a) and (b) for clarity.
The final regulations also reorganize section 30.183 for clarity, and add that an interest that represents less than five percent of the entire undivided ownership in the parcel may be renounced in favor of the Indian tribe with jurisdiction over the interest, in addition to those listed in the proposed rule.
The final regulations amend the heading of section 30.184 to remove unnecessary language in paragraph (a) and add a new paragraph (b), which amends the category of persons for whom the Secretary will continue to manage trust personalty. The category of “a person who owns a preexisting undivided trust or restricted interest in the same parcel of land” has been deleted. While this category of persons may still receive a renounced interest in trust personalty, the Secretary may not manage those personalty interests in trust status unless the person also fits into one of the other categories (lineal descendant of the decedent, a tribe, or an Indian).
In section 30.185, the final regulations clarify the deadline for filing a refusal to accept a renounced interest.
The final regulations clarify in section 30.187 that a judge must receive a revocation of a renunciation before entry of a final order for the revocation to be effective.
The final regulations amend section 30.188 to clarify that, where there is a will, and the renunciation is not to an eligible person or entity, the interest will go to the residual devisees.
43 CFR Part 30—Subpart I
Section 30.201 has been amended to clarify that a summary of the proposed distribution, rather than all the information included on the OHA-7 form, will be included in the notice of the summary probate proceeding. The final regulations also delete the exception (“except to a creditor who is not an eligible heir”) as superfluous because such creditors do not receive notice of the summary probate proceeding.
The final rule adds a new section 30.202 to clarify that OHA will consider all claims filed with the agency before the agency transferred the file to OHA, and will consider claims of devisees or eligible heirs if filed with OHA within 30 days of the mailing of the summary probate proceeding notice. This section also moves text from the proposed section 30.202 (final section 30.203) allowing devisees or eligible heirs to renounce or disclaim an interest within 30 days of the mailing of the summary probate proceeding notice.
The final regulations clarify in section 30.207 that if nobody files for de novo review within 30 days of a written decision, it will be final for the Department. Interested parties have an opportunity to request de novo review during the 30 days following a decision, and if they forgo this opportunity, they are not given another opportunity to challenge the decision. If an interested party does request de novo review, he or she retains all rights to request rehearing and appeal.
43 CFR Part 30—Subpart J
The final regulations amend section 30.210(b) to include more accurate language with regard to notice returned by the post office as undeliverable, rather than unclaimed.
The final regulations in section 30.211 delete the deadline for the judge to publish advance notice of the hearing, since it is already included in section 30.210(a)(2).
The final regulations add clarifying language in section 30.212 and delete the statement that requirements for notice by posting may not be waived.
The final regulations amend section 30.214 to delete the requirement for the drafter of the will to be named in the notice of the hearing.
The final regulations add a new paragraph 30.222(a) clarifying what happens if a party fails to respond to a request for admission. The final regulations also delete “and requests for admission” from section 30.222(b).
Section 30.224(a)(3) is amended to clarify that the judge will also mail copies of the order to witnesses, in addition to interested parties. The final regulations delete paragraph (e) concerning the judge's filing a petition with the U.S. District Court to invoke the court's powers of contempt if necessary, since jurisdiction over such a proceeding cannot be conferred by regulation.
The final regulations delete proposed section 30.225 in its entirety because public disclosure is governed by the Privacy Act and AIPRA. Subsequent sections are renumbered accordingly.
The final regulations change “probate” to the correct term, “probative,” in section 30.227(a)(1), in response to a comment.
In section 30.232, the final rule deletes the sentence regarding the judge compiling the official record because this item is addressed in section 30.127.
While the final regulations do not change section 30.234, the Department would like to clarify here that, generally, the Department retains recordings indefinitely, but there is no guarantee against deterioration of recording media, so recordings may be lost due to age. To the extent that the Department may otherwise be legally required to keep records, the
Department complies with those requirements regardless of the regulation. Additionally, the Department keeps recordings as long as possible for historical purposes. Given that most recordings are now digital, the issue of storage space for tapes is less of an issue and now the issue is electronic storage space.
The final regulations revise section 30.235 to state what all decisions must include and clarify the different contents of decisions and orders in testate versus intestate cases. Under 30.235(a)(1), a decision need not contain the identification numbers of heirs and devisees, in the interest of protecting personally identifiable information of living people to the greatest extent possible. The final section also makes explicit that a judge's decision in a formal intestate probate proceeding will cite the law of descent and distribution in accordance with which the decision is made and, in all formal probate proceedings, will include the probate case number assigned to the case in any case management or tracking system then in use within the Department.
In section 30.236, the final regulations make explicit that the notice of the judge's decision must include notice that adversely affected interested parties have the right to file a petition for rehearing with the judge within 30 days of the date the decision is mailed. Likewise, the final regulations include appeal rights in section 30.239.
Section 30.242 has been reworded to clarify the applicable timelines, make explicit that the agency may also file a petition for reopening, and clarify the required contents of a petition.
In sections 30.243 and 30.244, the final regulations clarify that an order denying reopening and final order on reopening must advise interested parties of their appeal rights.
43 CFR Part 30—Subpart K
In section 30.250, the final regulations delete “Indian” from “Indian testator” because a person who owns trust or restricted property may make a will devising the property, whether or not the testator meets the definition of an “Indian.”
The final regulations in section 30.254 delete the provision regarding sending notice of rights to appeal because the final rule includes this provision in each instance in which it is applicable, rather than in this one location.
43 CFR Part 30—Subpart L
The final regulations reorder the sections in subpart L to follow a more chronological approach. The final regulations also delete references to statutes relating to Devils Lake Sioux Reservation for the Spirit Lake Sioux Tribe and to the Standing Rock Sioux Reservation in section 30.260 because these regulations are not appropriate to those statutory schemes.
The final regulations amend section 30.262 (proposed section 30.264) to clarify that, following a decision on a rehearing or hearing, the tribe may purchase the interest in accordance with its statutory option to purchase if the decision on the rehearing or hearing is favorable to the tribe.
In final section 30.264 (proposed section 30.262), the Department clarified that BIA furnishes valuations only for those probates where a tribe exercises its statutory option to purchase. The wording of the proposed, and current, versions of the regulations caused confusion about which probates require a valuation. The final regulations reorganize this section for clarity, and specify that interested parties may view and copy, at their expense, the valuation report at the agency.
The final regulations incorporate updated language regarding rights of appeal in sections 30.267, 30.268 and 30.270.
3. Distribution Table—43 CFR Part 4, Subpart D, and 43 CFR Part 30
The following distribution table indicates where each of the current regulatory sections in 43 CFR part 4, subpart D, is located in the final 43 CFR part 30 and in final revisions to 43 CFR part 4.
Current citation
New citation
Title
4.200
30.100
How do I use this part?
4.201
30.101
What definitions do I need to know?
30.102
Will the Secretary probate all the land or assets in an estate?
4.210
30.110
When does OHA commence a probate case?
4.211
30.111
How does OHA commence a probate case?
30.112
What must a complete probate file contain?
30.113
What will OHA do if it receives an incomplete probate file?
30.114
Will I receive notice of the probate proceeding?
30.115
May I review the probate record?
4.202
30.120
What authority does the judge have in probate cases?
30.121
May a judge appoint a master in a probate case?
30.122
Is the judge required to accept the master's recommended decision?
4.206
30.123
Will the judge determine matters of status and nationality?
4.204
30.124
When may a judge make a finding of death?
4.203
4.205
30.154
What happens when a person dies without a will and has no heirs?
4.242
30.125
May a judge reopen a probate case to correct errors and omissions?
30.130
How does a judge or ADM recuse himself or herself from a probate case?
30.131
How will the case proceed after the judge's or ADM's recusal?
30.132
May I appeal the judge's or ADM's recusal decision?
4.250(a)
30.140
Where and when may I file a claim against the probate estate?
4.250(c)
30.141
How must I file a claim against a probate estate?
4.250(b)
30.142
Will a judge authorize payment of a claim from the trust estate if the decedent's non-trust estate was or is available?
4.250(d)-(f)
30.143
Are there any categories of claims that will not be allowed?
4.251(a)
30.144
May the judge authorize payment of the costs of administering the estate?
4.251(b)
What are priority claims the deciding official may authorize payment for?
4.251(c)
When may the deciding official authorize payment of general claims?
4.251(d)
30.145
When can a judge reduce or disallow a claim?
4.251(e)-(g)
30.147
What happens if there is not enough trust personalty to pay all the claims?
4.251(h)
30.148
Will interest or penalties charged after the date of death be paid?
4.252
30.146
What property is subject to claims?
4.207
30.150
What action will the judge take if the interested parties agree to settle matters among themselves?
30.151
May the devisees or eligible heirs in a probate proceeding consolidate their interests?
30.152
May the parties to an agreement waive valuation of trust property?
30.153
Is an order approving an agreement considered a partition or sale transaction?
30.160
What may be purchased at probate?
30.161
Who may purchase at probate?
30.162
Does property purchased at probate remain in trust or restricted status?
30.163
Is consent required for a purchase at probate?
30.164
What must I do to purchase at probate?
30.165
Whom will OHA notify of a request to purchase at probate?
30.166
What will the notice of the request to purchase at probate include?
30.167
How does OHA decide whether to approve a purchase at probate?
30.168
How will the judge allocate the proceeds from a sale?
30.169
Who may I do if I do not agree with the appraised market value?
30.170
What may I do if I disagree with the judge's determination to approve a purchase at probate?
30.171
What happens when the judge grants a request to purchase at probate?
30.172
When must the successful bidder pay for the interest purchased?
30.173
What happens after the successful bidder submits payment?
30.174
What happens if the successful bidder does not pay within 30 days?
30.175
When does a purchased interest vest in the purchaser?
4.208
30.180
May I give up an inherited interest in trust or restricted property or trust personalty?
30.181
How do I renounce an inherited interest?
30.182
Who may receive a renounced interest in trust or restricted land?
30.183
Who may receive a renounced interest of less than 5 percent in trust or restricted land?
30.184
Who may receive a renounced interest in trust personalty?
30.185
May my designated recipient refuse to accept the interest?
30.186
Are renunciations that predate the American Indian Probate Reform Act of 2004 valid?
4.208(c)
30.187
May I revoke my renunciation?
4.208(b)
30.188
Does a renounced interest vest in the person who renounced it?
4.212
30.200
What is a summary probate proceeding?
30.202
May I file a claim or renounce or disclaim an interest in the estate in a summary probate proceeding?
30.203
May I request that a formal probate proceeding be conducted instead of a summary probate proceeding?
30.201
What does a notice of a summary probate proceeding contain?
4.213
4.214
30.204
What must a summary probate decision contain?
4.215(a)-(c)
30.205
How do I seek review of a summary probate proceeding?
4.215(d)
4.215(e)
30.206
What happens after I file a request for a de novo review?
30.207
What happens if nobody files for a de novo review?
4.216
30.210
How will I receive notice of the formal probate proceeding?
30.213
What notice to a tribe is required in a formal probate proceeding?
30.211
Will the notice be published in a newspaper?
30.212
May I waive notice of the hearing or the form of notice?
4.217
30.214
What must a notice of hearing contain?
4.220(a), (c)
30.215
How may I obtain documents related to the probate proceeding?
4.221(a)-(c)
30.216
How do I obtain permission to take depositions?
4.221(d)-(g)
30.217
How is a deposition taken?
4.221(h)
30.218
How may the transcript of a deposition be used?
30.219
Who pays for the costs of taking a deposition?
4.222
30.220
How do I obtain written interrogatories and admission of facts and documents?
4.223
30.221
May the judge limit the time, place, and scope of discovery?
4.224
30.222
What happens if a party fails to comply with discovery?
4.225
30.223
What is a prehearing conference?
4.230
30.224
May a judge compel a witness to appear and testify at a hearing or deposition?
4.231
30.225
Must testimony in a probate proceeding be under oath or affirmation?
30.226
Is a record made of formal probate hearings?
4.232
30.227
What evidence is admissible at a probate hearing?
4.233(a)-(b)
30.228
Is testimony required for self-proved wills, codicils, or revocation?
4.233(c)
30.229
When will testimony be required for approval of a will, codicil or revocation?
4.234
30.230
Who pays witnesses' costs?
4.235
30.231
May a judge schedule a supplemental hearing?
4.236(a)
30.232
What will the official record of the probate case contain?
4.236(b)
30.233
What will the judge do with the original record?
30.234
What happens if a hearing transcript has not been prepared?
4.240(a)
30.235
What will the judge's decision in a formal probate hearing contain?
4.240(b)
30.236
What notice of the decision will the judge provide?
4.241(a)
30.237
May I file a petition for rehearing if I disagree with the judge's decision in the formal probate hearing?
4.241(b)
30.238
Does any distribution of the estate occur while a petition for rehearing is pending?
4.241(c)-(e)
30.239
How will the judge decide a petition for rehearing?
4.241(f)
30.240
May I submit another petition for rehearing?
4.241(g)-(h)
30.241
When does the judge's decision on a petition for rehearing become final?
4.242
30.242
May a closed probate case be reopened?
30.243
How will the judge decide my petition for reopening?
30.244
What happens if the judge reopens the case?
4.242(h)-(i)
30.245
When will the decision on reopening become final?
4.261
30.250
When does the anti-lapse provision apply?
4.262
30.251
What happens if an heir or devisee participates in the killing of the decedent?
4.270
4.271
30.126
What happens if property was omitted from the inventory of the estate?
4.272
30.127
What happens if property was improperly included in the inventory?
30.128
What happens if an error in BIA's estate inventory is alleged?
4.273
4.281
30.252
May a judge allow fees for attorneys representing interested parties?
4.282
30.253
How must minors or other legal incompetents be represented?
30.254
What happens when a person dies without a valid will and has no heirs?
4.300(a)
30.260
What land is subject to a tribal purchase option at probate?
4.300(b)-(d)
30.265
What determinations will a judge make with regard to a tribal purchase option?
4.301
30.264
When must BIA furnish a valuation of a decedent's interests?
4.302(a)
30.266
When is a final decision issued?
4.302(b)
30.262
When may a tribe exercise its statutory option to purchase?
30.261
How does a tribe exercise its statutory option to purchase?
4.303
30.263
May a surviving spouse reserve a life estate when a tribe exercises its statutory option to purchase?
4.304
30.267
What if I disagree with the probate decision regarding tribal purchase option?
4.305(a)
30.268
May I demand a hearing regarding the tribal option to purchase decision?
4.305(b)
30.269
What notice of the hearing will the judge provide?
4.305(c)-(d)
30.270
How will the hearing be conducted?
4.306
30.271
How must the tribe pay for the interests it purchases?
4.307(a)
30.272
What are BIA's duties on payment by the tribe?
4.307(b)
30.273
What action will the judge take to record title?
4.308
30.274
What happens to income from land interests during pendency of the probate?
4.320(a)
4.320
Who may appeal a judge's decision or order?
4.320(b)(1)-(3)
4.321
How do I appeal a judge's decision or order?
4.322
What must an appeal contain?
4.320(c)
4.323
Who receives service of the notice of appeal?
4.320(d)
4.324
How is the record on appeal prepared?
4.321
4.325
How will the appeal be docketed?
4.322
4.326
What happens to the record after disposition?
VI. Procedural Requirements
A. Regulatory Planning and Review (Executive Order 12866)
Executive Order 12866 (58 FR 51735, October 4, 1993) requires Federal agencies taking a regulatory action 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 this 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. This rule does not add or subtract land or IIM account funds from any probate estate. Additionally, the total assets probated each year are themselves below the $100 million mark. The following discussion individually addresses each CFR part and substantive 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 and tribes contracting or compacting to perform BIA's probate functions (“agency”). Amendments will ensure that the agency compiles sufficient information in the probate file so that when the agency 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 trust estates. 25 U.S.C. 372;
First Moon
v.
White Tail & United States
, 270 U.S. 243 (1926);
United States
v.
Bowling
, 256 U.S. 484 (1921);
Lane
v.
United States
, 241 U.S. 201 (1916);
Hallowell
v.
Commons
, 239 U.S. 506 (1916);
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 enacted AIPRA amendments to ILCA, 25 U.S.C. 2201
et seq.
, affect 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 through consolidation agreements, and affect 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 agency, there is no effect on the outside economy. Amendments to this part focus on the agency'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 179
Amendments to part 179 make two primary changes with potential to affect the economy:
• Incorporate AIPRA's requirement that life estates created by operation of law under AIPRA after June 20, 2006, will be “without regard to waste,” as explained below.
• Replace the current tables showing the value of a life estate and remainderman with a reference to Actuarial Table S, issued by the Internal Revenue Service, to make life estate and remainder valuations consistent with the Internal Revenue Service's valuations.
The existing part 179 provided that the life tenant will have the rights to all rents and profit, as income, from the estate, but did not provide that such rights were “without regard to waste” for life tenants by intestacy. Therefore, the existing part 179 required all life tenants to ensure that they did not diminish the estates of the remaindermen in their pursuit of rents and profits. Additionally, the existing part 179 required contract bonuses to be split one-half each between the life tenant and the remainderman.
The first primary change to part 179 is necessary to reflect the AIPRA sections establishing that life estates created by operation of law under AIPRA will be determined “without regard to waste,” meaning that the life estate holder is entitled to the receipt of all income, including bonuses and royalties, from such land, to the exclusion of remaindermen.
See
25 U.S.C. 2201(10), 2205, 2206(a)(2). These amendments comply with the provisions of AIPRA with respect to life estates created by operation of law under AIPRA after June 20, 2006. There is no change with respect to life estates created before June 20, 2006, or life estates created by conveyance documents on or after June 20, 2006.
The cost of amendments incorporating “without regard to waste” provisions could be a reduced value of the remaindermen's estate. However, amendments to the discount rate will generally provide remaindermen with more value. These amendments may affect the timing of the distribution of the value of the land between life tenants and remaindermen, but will not affect the economy as a whole. The Department does not currently track how many life estates are created by operation of law under AIPRA, but if it were assumed for the sake of analysis that all probated acreage included life estates created by operation of law under AIPRA on or after June 20, 2006, the value of the life estates would be some fraction of the value of the total land value per year, which is $74,724,525. The new requirement that the life estate holder receive all income, including bonuses and royalties, from such land, affects only the allocation of this amount between life estate holders and remaindermen, and does not affect the economy.
The change to the valuation tables, eliminates valuation based on the gender of the life tenant, and now refers to Internal Revenue Service Actuarial Table S. In the current version of part 179, the valuation of remainder interests where the life tenant was female was consistently lower than the valuation of remainder interests where the life tenant was male. At a 6 percent discount rate, the IRS Actuarial Table S results in remainder valuations that generally fall between the two values. Again, this change affects only the allocation of the value between the life estate holders, and does not affect the economy.
For these reasons, part 179 will not have an effect on the economy.
43 CFR Parts 4 and 30
Most amendments to 43 CFR part 4 (including those incorporated in the new part 30) are amendments to the existing 43 CFR part 4, subpart D, relating to the administration of probate estates. The amendments add provisions to implement procedures established by AIPRA for renouncing an interest, consolidating interests by agreement, requesting and conducting a purchase at probate, and setting the time periods for filing requests for de novo review and rehearing at 30 days, rather than the current 60 days.
Because these provisions relate to procedural aspects of probating trust estates and will not affect the amount of money and property within each estate that is distributed, nor the number of estates that must be probated, they have no effect on the economy. For these reasons, amendments to 43 CFR part 4, subpart D, and the new 43 CFR part 30 will not affect the economy.
New 25 CFR Part 18 (Tribal Probate Codes)
The new CFR part addressing tribal probate codes implements provisions of ILCA that allow any tribe to adopt a tribal probate code to govern descent and distribution of trust and restricted lands within its reservation or otherwise subject to its jurisdiction. 25 U.S.C. 2005(a). ILCA provides that the tribe must submit the tribal probate code containing provisions for trust and restricted lands to the Secretary for review and approval. The Secretary may not approve a tribal probate code that contains provisions contrary to Federal law or policy.
The baseline is the absence of regulations governing tribal probate codes. While the ILCA statute had established requirements for a tribal probate code and the basics of the submission and approval process in 1983, there have been no implementing regulations. With AIPRA, a new uniform Federal probate code will govern descent and distribution of trust and restricted property. This may prompt some tribes to prepare a tribal probate code and may prompt tribes that already have a tribal probate code to amend it in light of AIPRA.
An approved tribal code, or AIPRA if there is none, will govern the descent and distribution of trust and restricted lands for deceased persons owning trust or restricted property. AIPRA will govern the descent and distribution of trust personalty. These regulations, which implement statutory provisions
for Secretarial approval of tribal probate codes, do not affect the economy because tribes were already authorized to establish tribal probate codes and statutorily required to submit such codes to the Secretary for approval. For these reasons, the new 25 CFR part 18 will not affect the economy.
(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency.
Implementation of this rule will not create any serious inconsistencies or otherwise interfere with an action taken or planned by another agency because the Department is the only agency with authority for handling Indian trust management issues related to probate. Additionally, this rule will standardize processes within the Department, to guard against internal inconsistencies.
(3) This rule will not materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of the recipients thereof.
(a) The revisions 25 CFR part 15 address what must be included in a probate package and describe how to file a claim against an estate, but do not address entitlements, grants, user fees, or loan programs. Therefore, revisions to part 15 have no budgetary effects and do not affect the rights or obligations of any recipients.
(b) The revisions to 43 CFR part 4 (including those incorporated into the new 43 CFR part 30) address the procedures for adjudicating a probate case and the rights of individual Indians with respect to a probate case. The revisions do not address entitlements, grants, user fees, or loan programs.
(c) Amendments to 25 CFR part 179 change the respective rights of a life estate tenant, and remainderman, where the life estate was created by operation of law under AIPRA on or after June 20, 2006. This change entitles the life tenant to receive all income from the land, including rents and profits, contract bonuses, and royalties. This change in rights will not impact the budget.
(d) The new CFR part addressing tribal probate codes does not address entitlements, grants, user fees or loan programs and will not materially alter the Department's budget because the CFR part merely implements the existing statutory requirement for Departmental review of tribal probate codes that contain provisions applicable to trust or restricted lands, and the requirement for Secretarial approval of those provisions.
(4) This rule does not raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
Most of the regulatory changes directly implement statutory provisions that require certain actions to meet Indian trust management responsibilities. Specifically, the rule implements requirements of AIPRA, the American Indian Trust Fund Management Reform Act of 1994, and court orders. The legal and policy issues related with this rulemaking have been thoroughly discussed through the process of developing and implementing the Fiduciary Trust Model, discussed in the preamble.
Thus, the impact of the rule is confined to the Federal Government, individual Indians, and tribes and does not impose a compliance burden on the economy generally. Accordingly, this rule is not a “significant regulatory action” from an economic standpoint, nor does it otherwise create any inconsistencies, materially alter any budgetary impacts, or raise novel legal or policy issues.
B. Regulatory Flexibility Act
The Department has reviewed this rule pursuant to the Regulatory Flexibility Act (5 U.S.C. 601
et seq.
), and certifies that the rule will not have a significant economic impact on a substantial number of small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). Small businesses who may be creditors of an estate are the only small entities potentially impacted by this rule, and the Department has determined that this rule will not have a significant economic impact on these entities. Indian tribes are not considered to be small entities for the purposes of the Act and, consequently, no regulatory flexibility analysis has been done to address the effects on Indian tribes.
C. Small Business Regulatory Enforcement Fairness Act of 1996
The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 804(2), sets criteria for determining whether a rule is “major.” A rule is major if OMB finds that the rule will result in (1) an annual effect on the economy of $100 million or more; (2) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
This rule is not major within the meaning of SBREFA. It may require some limited additional expenditures by tribes, as discussed in subsection H of the procedural requirements (Paperwork Reduction Act) of this preamble. However, it will not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year.
Because this rule is limited to probated Indian trust estates, land, and assets within the United States and within tribal communities, it will not result in a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions or have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of the U.S.-based enterprises to compete with foreign-based enterprises.
D. Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2. U.S.C. 1531
et seq.
, requires Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. If the agency promulgates a proposed or final rule with Federal mandates that may result in expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, the Federal agency must prepare a written statement, including a cost-benefit analysis of the rule, under section 202 of the UMRA. The term “Federal mandate” means any provision in statute or regulation or any Federal court ruling that imposes “an enforceable duty” upon State, local, or tribal governments, and includes any condition of Federal assistance or a duty arising from participation in a voluntary Federal program that imposes such a duty.
The Department has determined that the rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments in the aggregate, or by the private sector in any one year. The following discussion addresses each CFR part individually to identify Federal mandates.
25 CFR Part 15
Most amendments to part 15 address the internal processes of the BIA (or tribe that has compacted or contracted to fulfill probate functions) in compiling probate files.
• Part 15 contains a mandate for tribal governments to provide information
when necessary to complete a probate file. This provision is aimed at requiring tribes to provide information that is already readily available to them, such as family history data.
• Part 15 also contains a mandate for the public, presumably someone closely associated with the decedent, to provide either a certified copy of a death certificate or other information regarding the death.
Subsection H of the procedural requirements (Paperwork Reduction Act) of this preamble states the expected increase in cost burden on tribal governments of these mandates, which is minimal. The opportunity for tribes to adopt their own tribal probate codes is voluntary and does not qualify as a Federal mandate.
25 CFR Part 179
Amendments to part 179 do not impose any duties on persons outside the Department of the Interior.
43 CFR Parts 4 and 30
Amendments to 43 CFR part 4 (including those incorporated into the new 43 CFR part 30), related to adjudication of probate estates, clarify the process for renouncing an interest, and allow consolidation agreements and purchases at probate. These opportunities are voluntary. The remainder of the amendments address OHA adjudication of probate estates and appeals. These amendments do not impose any Federal mandates on individual Indians, tribes, or others outside the Department of the Interior.
New 25 CFR Part 18 (Tribal Probate Codes)
The new CFR part addressing tribal probate codes implements statutory authority for the adoption of a tribal probate code and statutory requirements for Secretarial approval of tribal probate codes. The adoption of a tribal probate code is voluntary; therefore, this rule does not impose any Federal mandates on tribes.
Section 205 of the UMRA requires the agency to identify and consider a reasonable number of regulatory alternatives to the rule and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The Department has determined that alternatives to this rule are limited by practicality and feasibility, among other concerns, given that this rule is the result of negotiated working group recommendations working within the confines of statutory and judicial mandates. For this reason, the primary alternative the Department examined was the baseline (i.e., the current CFR part or the absence of regulatory provisions, as appropriate). With respect to each CFR part, the Department determined that the final language meets the objectives of the rule.
Section 203 of the UMRA requires the agency to develop a small government agency plan before establishing any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments. The small government agency plan must include procedures for notifying potentially affected small governments, providing officials of affected small governments with the opportunity for meaningful and timely input in the development of regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. The Department has been operating under tribal consultation procedures that equate to a small government agency plan. The Department has developed these regulations in accordance with consultation procedures for notifying tribes, providing tribes with the opportunity for meaningful and timely input on the development of the rule; and it continues to inform, educate, and advise tribes on the contents of the rule.
E. Governmental Actions and Interference With Constitutionally Protected Property Rights (Executive Order 12630)
This rule does not have significant “takings” implications. The Department notes that all sales under these regulations require that the owners be compensated at fair market value.
F. Federalism (Executive Order 13132)
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), establishes certain requirements for Federal agencies issuing regulations, among other agency documents, that have “federalism implications.” A regulation has “federalism implications” when it has “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
This rule does not have federalism implications because it pertains solely to Federal-tribal relations and will not interfere with the roles, rights, and responsibilities of the States. The rule primarily provides means for improving the trust relationship between the Department and individual Indians by allowing the Department to better serve beneficiaries' interests. Additionally, the Federal government and the tribes have a government-to-government relationship that is independent of and does not affect the Federal government's relationship to the States or the balance of power and responsibilities among various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule will not have sufficient federalism implications to warrant the preparation of a federalism assessment.
G. Civil Justice Reform (Executive Order 12988)
Executive Order 12988 (61 FR 4729, February 7, 1996), section 3(a), requires Federal agencies to adhere to the following requirements when promulgating regulations: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. Section 3(b) specifically requires that executive agencies make every reasonable effort to ensure that the regulations (1) clearly specify any preemptive effect; (2) clearly specify any effect on existing Federal law or regulation; (3) provide a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specify the retroactive effect, if any; (5) adequately define key terms; and (6) address other important issues clearly affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of the Executive Order requires agencies to review regulations in light of the applicable standards in sections 3(a) and 3(b) to determine whether they are met or whether it is unreasonable to meet one or more of them.
The Department has determined that this rule will not unduly burden the judicial system. Significant portions of the rule will ensure that the judicial system is not overly burdened through enhancements to the administrative adjudication process. For example, amendments to 43 CFR parts 4 and 30, which describe the administrative processes for challenging the outcome of a probate proceeding, will streamline the probate adjudication process. Additionally, the Department has determined that the rule meets the applicable standards provided in sections 3(a) and 3(b) of Executive Order 12988. The Department has incorporated “plain language” approaches, as described in OMB's Writing User-Friendly Topics referred to
in the
Federal Register
Document Drafting Handbook. Department attorneys provided input throughout the development and drafting of these regulations to provide clear legal standards, specify preemptive effects, specify the effect on existing Federal laws and regulations, and otherwise minimize the likelihood that litigation will result from an ambiguity in the regulations.
H. Paperwork Reduction Act
The Paperwork Reduction Act (PRA), 44 U.S.C. 3501
et seq.
, prohibits a Federal agency from conducting or sponsoring a collection of information that requires OMB approval, unless such approval has been obtained and the collection request displays a currently valid OMB control number. No person is required to respond to an information collection request that has not complied with the PRA.
1. Background
In the
Federal Register
of August 8, 2006, the Department published the proposed rule and invited comments on the proposed collection of information. The Department reopened the comment period for an additional 60 days to January 2, 2007. The Department again reopened the public comment period on January 25, 2007, for an additional 60 days to March 12, 2007. The Department submitted the information collection request to the Office of Management and Budget (OMB) for review and approval. OMB did not approve this collection of information, but instead, filed comment. In filing comment on this collection of information, OMB requested that, prior to the publication of the final rule, the Department provide all comments on the recordkeeping and reporting requirements in the proposed rule, the Department's response to these comments, and a summary of any changes to the information collections. Further, OMB requested for any future submissions of this information collection, the Department indicate the submission as “new” and reference OMB control numbers 1076-0169, 1076-0168, and 1076-0171.
2. Comments on Information Collections
In response to publication of the proposed rule in the
Federal Register
and notices reopening the comment period, the Department did not receive any public comments regarding the information collection requirements. However, the Department did receive a few oral comments on the information collection requirements during tribal consultations and one written comment from a Departmental employee.
The oral comments asked generally what the Paperwork Reduction Act section of the proposed rule addressed, and what the information collection request figures represented. Representatives of the Department responded at the tribal consultations by summarizing the Paperwork Reduction Act's requirement that the Department (1) identify any instances where the regulation requests that members of the public provide information; (2) explain the need for that information collection request; and (3) estimate how long it will take members of the public to provide the information. The Department representatives highlighted the fact that members of the public are welcome to comment on the information collection requests, including the Department's need for the information and estimates for how long it will take to provide the information.
Pursuant to OMB's comments, the Department has summarized and submitted the comments, the Department's responses to these comments, and any changes made to information collections to OMB.
3. Information Collection Hour Burdens
Two CFR parts being published today contain information collection requests: 25 CFR parts 15 and 18. The following tables, by part, describe the information collection requirements in each section of the final rule and any changes from the current rule.
25 CFR Part 15
Title:
Probate of Indian Estates, Except for Members of the Osage Nation and the Five Civilized Tribes.
OMB Control Number:
1076-0169.
Requested Expiration Date:
Three years from the approval date.
Summary:
This part contains the procedures that the Secretary of the Interior follows to initiate the probate of the trust estate of a deceased person for whom the Secretary holds an interest as trust or restricted property. The Secretary must perform the information collection requests in this part to obtain the information necessary to compile an accurate and complete probate file. This file will be forwarded to the Office of Hearings and Appeals (OHA) for disposition. Responses to these information collection requests are required to obtain benefits (e.g., payment of a devise or claim from a probated estate) in accordance with the Secretary's sole statutory authority to probate estates (
see
25 U.S.C. 372).
Bureau Form Number:
None.
Frequency of Collection:
One per respondent each year with the exception of tribes that may be required to provide enrollment information on an average of approximately 10 times/year.
Description of Respondents:
Indians, businesses, and tribal authorities.
Number of Respondents:
64,915.
Total Annual Responses:
76,655.
Total Annual Burden Hours:
1,037,433.
The following is an explanation of the information collection requirements for 25 CFR part 15.
Section 15.9 What information must be included in an affidavit for a self-proved will, codicil, or revocation?
This rule includes a requirement for a testator and witnesses executing a self-proving will, codicil, or revocation to file affidavits. The Department has estimated that approximately 1,000 testators will choose to execute self-proving wills each year and that it will take approximately 0.5 hour to make the affidavit before an official authorized to administer oaths and to attach the affidavit to the will = 500 burden hours. This represents an increase of 500 burden hours due to program change with no annualized startup, or operations and maintenance costs.
Likewise, given that approximately 1,000 testators will choose to execute self-proving wills each year, approximately 2,000 witnesses will be required to file supporting affidavits at 0.5 hour each = 1,000 burden hours. This represents an increase of 1,000 burden hours due to program change with no annualized startup, or operations and maintenance costs.
Section 15.104 Does the agency need a death certificate to prepare a probate file?
This rule adds a requirement for persons unable to provide a certified copy of a death certificate to provide as much information as they have about the deceased, including the State, city, reservation, location, date, and cause of death, the last known address of the deceased, and names and addresses of others who may have information about the deceased. If no death certificate exists, they must provide this information in an affidavit. This information will ensure that BIA has the information it needs regarding the identity of the deceased to collect documents for the probate file. The requirement already existed to provide a certified copy of a death certificate or, when unable to provide a certified copy of a death certificate because none existed, newspaper articles, obituary, or death notices and a church or court record.
The Department estimates that preparing the affidavit in lieu of
providing a death certificate will impose an additional 1 hour burden per response to comply with this section. The existing estimated burden for locating and providing the death certificate is 4 hours per response. Assuming a respondent provides an affidavit in lieu of a certified copy of a death certificate only after spending the 4 hours searching unsuccessfully for the death certificate, 5 total burden hours per response are required to comply with this section. Assuming approximately 5,850 probates per year, the total burden will be 5,850 responses × 5 hours per response = 29,250 burden hours. This represents an increase of 5,850 hours due to a programmatic change, with no annualized startup, or operations and maintenance costs.
Section 15.105 What other documents does the agency need to prepare a probate file?
This section lists the items that BIA needs to prepare a probate file. The decedent's family and other knowledgeable members of the public are the most likely respondents for this information. The rule adds several items of information that must be included in the probate file. These additional items are (1) adoption and guardianship papers concerning decedent's potential heirs or beneficiaries; (2) orders requiring payment of spousal support; (3) identification of person or entity to whom an interest is renounced; (4) court judgments regarding creditor claims; and (5) place of enrollment and tribal enrollment or census number of the decedent and potential heirs and beneficiaries.
The Department estimates that providing these documents will add approximately 1.25 hours to each response. Assuming 21,235 respondents annually × 45.5 hours to complete this section = 966,192.5 burden hours. This is an increase of approximately 26,543.75 hours due to a program change, with no annualized startup, or operations and maintenance costs.
Section 15.301 May I receive funds from the decedent's IIM account for funeral services?
There has been no change to the information collection requirements in this section. The Department estimates that there will be one request for funeral expenses per each of the estimated 5,850 probates per year, at an estimated 2 hours per response = 11,700 burden hours, with no annualized startup, or operations and maintenance costs.
Section 15.302 May I file a claim against the estate?
This rule adds to the requirements in the existing regulations that creditors provide information regarding their claims. Specifically, the rule requires creditors to file with the Secretary an affidavit and an itemized statement of the debt, including copies of any documents (such as signed notes, mortgages, account records, billing records, and journal entries) necessary to prove the indebtedness.
For the proposed rule, the Department estimated that, on average, approximately 6 creditor claims per probate estate will be filed and that it will take creditors approximately 0.5 hour to provide this information. The Department believes that the number-of-claims estimate was, in fact, high, but because no public comments were received, the Department has retained this estimate. The most recent Paperwork Reduction Act submission purported to assume that 6 claims per probate estate would be filed, but at 5,850 probates per year, the previous assumption of 127,410 respondents appears to be erroneous. Assuming 35,100 responses (6 claims per probate estate × 5,850 probate estates), the Department estimates the burden hours = 35,100 responses × 0.5 = 17,550 burden hours. This is a decrease of approximately 46,155 hours due to an adjustment with no annualized startup, or operations and maintenance costs.
This rule also adds a requirement for the person filing a claim against the estate to file an affidavit. The Department has determined that this does not qualify as “information” under 5 CFR 1320.3(h)(1) because it entails no burden other than that necessary to identify the claimant, the date, the claimant's address, and the nature of the instrument as a claim against the estate.
Section 15.203 What information must tribes provide BIA to complete the probate file?
This new section requires tribes to provide any information the Secretary requires to complete the probate file, such as enrollment or family data. The information required by the Secretary will include documents that the tribe should have readily available. We assumed that, of the 5,850 probate cases, at least one decedent would come from each of the 562 federally recognized tribes. On average, a tribe will have to provide information for approximately 10 of the 5,850 probate cases per year. We estimate that each tribe will require 2 hours to assist in completing the probate file × 10 responses annually × 562 Federal recognized tribes = 11,240 hours to ensure completion of probate files. This is a new requirement, which incorporates 11,240 hours as a program change, with no annualized startup, or operations and maintenance costs.
Section 15.403 What happens after the probate order is issued?
This section provides that a request for de novo review may be filed within 30 days of a probate decision by an Attorney Decision Maker. The information collection requirements that had been included in this section have been moved to 43 CFR part 4, but are exempt under 5 CFR 1320.4(a)(2) because they relate to the conduct of administrative actions against specific individuals. Additionally, all that is required is the filing of a request for do novo review. This represents a decrease of 53,088 hours due to a program change.
Note:
The “Old CFR Section” numbers in the table below are those as of the last Paperwork Reduction Act submission for 25 CFR part 15 in December 2003.
Old CFR
section
New CFR
section
Description of info
collection requirement
Number of
response
per yr
Hours per response
Total hours
requested
(Annual)
Currently approved hours
Explanation of difference
15.9
File affidavit to self-prove will, codicil, or revocation
1,000
0.5
500
0
Requires testator affidavit to self-prove will.
15.9
File supporting affidavit to self-prove will, codicil, or revocation
2,000
0.5
1,000
0
Requires witness affidavits to self-prove will.
15.101
15.104
Reporting req.—death certificate
5,850
5
29,250
23,400
New section requires additional information where a death certificate is not provided.
15.106
15.301
Reporting funeral expenses
5,850
2
11,700
11,700
No change.
15.104
15.105
Provide probate documents
21,235
45.5
966,193
939,649
Amendments delete requirement for birth certificate, but add other requirements.
15.109
Provide disclaimer info (
1/4
)
0
0
0
7,887
Section deleted.
15.303
15.302
File claim against estate (affidavit)
N/A
N/A
N/A
15.203
N/A
Provide response to transmittal
0
0
0
2,972
This requirement has been deleted.
15.303
15.302
Provide info on creditor claim (6 per probate)
35,100
0.5
17,550
63,705
Decrease to reflect 6 claims per probate.
15.203
Provide tribal information for probate file
2
5,620
2
11,240
0
New requirement for tribes to provide enrollment information, upon request.
15.402
15.403
Provide info for filing appeal
0
0
0
53,088
Now only have to file a notice of appeal; info collection requirements moved to 43 CFR part 4.
Total
76,655
1,037,433
1,094,514
25 CFR Part 18
Title:
Tribal Probate Codes.
OMB Control Number:
1076-0168.
Requested Expiration Date:
Three years from the approval date.
Summary:
This part contains the procedures that the Secretary of the Interior follows to review and approve tribal probate codes and amendments to tribal probate codes. This part also explains the procedure the tribe must follow to begin the approval process for a tribal probate code or amendment to the code, as well as the date on which the tribal probate code becomes effective.
Bureau Form Number:
None.
Frequency of Collection:
On occasion.
Description of Respondents:
Tribal authorities.
Number of Respondents:
100.
Total Annual Responses:
100.
Total Annual Burden Hours:
50.
The following is an explanation of the information collection requirements for 25 CFR part 18.
Section 18.105 How does a tribe request approval for a tribal probate code?
Section 18.202 How does a tribe request approval for a tribal probate code amendment?
Section 18.302 How does a tribe request approval for the single heir rule?
This rule adds a requirement for a tribe enacting a new tribal probate code, amending an existing tribal probate code, or enacting a freestanding single heir rule, to submit the code, amendment, or rule to the Secretary for approval. Secretarial approval is required whenever the code, amendment, or rule governs the descent or distribution of trust or restricted lands. The Department has estimated that, on average, approximately 100 tribes will submit new codes, amend their existing codes, or submit free-standing single heir rules each year, and that it will take approximately 0.5 hour to submit the document to the Secretary = 50 burden hours. This represents an increase of 50 burden hours due to program change with no annualized startup, or operations and maintenance costs.
New CFR section
Description of info
collection requirement
Number of
responses
per yr
Hours per
response
Total hours
requested
(annual)
Currently
approved
hours
Explanation of
difference
18.105, 18.202, 18.302
Submit tribal probate code, amendment, or single heir rule
100
0.5
50
0
New section requires submission of tribal probate code, amendment, or single heir rule for approval.
Total
100
50
0
4. OMB Approval of Information Collections
OMB has approved the information collection requirements included in this final rule and has assigned the following OMB Control Numbers—25 CFR part 15: OMB Control No. 1076-0169, and 25 CFR part 18: OMB Control No. 1076-0168. These approvals will expire on 11/30/2011. Questions or comments concerning this information collection should be directed to the person listed in the
FOR FURTHER INFORMATION CONTACT
section of this preamble.
I. National Environmental Policy Act (NEPA)
The National Environmental Policy Act of 1969 (NEPA) requires Federal
agencies to prepare an environmental assessment or environmental impact statement for all “major Federal actions.” This rule does not constitute a major Federal action significantly affecting the quality of the human environment. An environmental assessment is not required because any environmental effects of this rule are too broad, speculative, or conjectural to lend themselves to meaningful analysis. Further, the Federal actions under this rule (e.g., approval or disapproval of leases of Indian lands), where they qualify as “major Federal actions,” will be subject to the NEPA process at the time of the action itself, either collectively or case-by-case.
J. Government-to-Government Relationships With Tribes (Executive Order 13175)
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments,” Executive Order 13175 (59 FR 22951, November 6, 2000), and 512 DM 2, we have evaluated the potential effects on federally recognized Indian tribes and Indian trust assets and have identified potential effects. The Department engaged tribal government representatives in developing the Fiduciary Trust Model, which served as the basis for this rulemaking, provided tribal government representatives with advance copies of the proposed rule, and provided additional notice to tribal government through
Federal Register
notices. The Department 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. The Department then presented revised drafts and again obtained the input of tribes at tribal consultations in Rapid City, South Dakota, on July 27, 2006. Tribal consultations on the proposed regulations took place in Billings, Montana, on August 8, 2006, and in Minneapolis, Minnesota, on August 10, 2006. The Department carefully reviewed comments received by tribal government officials. These actions enabled tribal officials and the affected tribal constituency throughout Indian country to have meaningful and timely input in the development of the final rule, while reinforcing positive intergovernmental relations with tribal governments.
K. Energy Effects (Executive Order 13211)
Executive Order 13211 addresses regulations that significantly affect energy supply, distribution, and use. The Executive Order requires agencies to prepare Statements of Energy Effects when undertaking certain actions. In accordance with this Executive Order, this rule does not have a significant effect on the nation's energy supply, distribution, or use. This rule is restricted to addressing assets held in trust or restricted status for individual Indians or tribes.
L. Information Quality Act
In developing this rule, the Department did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Pub. L. 106-554).
List of Subjects
25 CFR Part 15
Estates, Indians-law.
25 CFR Part 18
Estates, Indians-lands.
25 CFR Part 179
Estates, Indians-lands.
43 CFR Part 4
Administrative practice and procedure, Claims.
43 CFR Part 30
Administrative practice and procedure, Claims, Estates, Indians, Lawyers.
For the reasons given in the preamble, the Department of the Interior amends chapter 1 of title 25 and subtitle A of title 43 of the Code of Federal Regulations as follows.
Title 25—Indians
Chapter 1—Bureau of Indian Affairs, Department of the Interior
1. Revise part 15 to read as follows:
PART 15—PROBATE OF INDIAN ESTATES, EXCEPT FOR MEMBERS OF THE OSAGE NATION AND THE FIVE CIVILIZED TRIBES
Subpart A—Introduction
Sec.
15.1
What is the purpose of this part?
15.2
What definitions do I need to know?
15.3
Who can make a will disposing of trust or restricted land or trust personalty?
15.4
What are the requirements for a valid will?
15.5
May I revoke my will?
15.6
May my will be deemed revoked by the operation of the law of any State?
15.7
What is a self-proved will?
15.8
May I make my will, codicil, or revocation self-proved?
15.9
What information must be included in an affidavit for a self-proved will, codicil, or revocation?
15.10
Will the Secretary probate all the land or assets in an estate?
15.11
What are the basic steps of the probate process?
15.12
What happens if assets in a trust estate may be diminished or destroyed while the probate is pending?
Subpart B—Starting the Probate Process
15.101
When should I notify the agency of a death of a person owning trust or restricted property?
15.102
Who may notify the agency of a death?
15.103
How do I begin the probate process?
15.104
Does the agency need a death certificate to prepare a probate file?
15.105
What other documents does the agency need to prepare a probate file?
15.106
May a probate case be initiated when an owner of an interest has been absent?
15.107
Who prepares the probate file?
15.108
If the decedent was not an enrolled member of a tribe or was a member of more than one tribe, who prepares the probate file?
Subpart C—Preparing the Probate File
15.201
What will the agency do with the documents that I provide?
15.202
What items must the agency include in the probate file?
15.203
What information must tribes provide BIA to complete the probate file?
15.204
When is a probate file complete?
Subpart D—Obtaining Emergency Assistance and Filing Claims
15.301
May I receive funds from the decedent's IIM account for funeral services?
15.302
May I file a claim against an estate?
15.303
Where may I file my claim against an estate?
15.304
When must I file my claim?
15.305
What must I include with my claim?
Subpart E—Probate Processing and Distributions
15.401
What happens after BIA prepares the probate file?
15.402
What happens after the probate file is referred to OHA?
15.403
What happens after the probate order is issued?
Subpart F—Information and Records
15.501
How may I find out the status of a probate?
15.502
Who owns the records associated with this part?
15.503
How must records associated with this part be preserved?
15.504
Who may inspect records and records management practices?
15.505
How does the Paperwork Reduction Act affect this part?
Authority:
5 U.S.C. 301; 25 U.S.C. 2, 9, 372-74, 410, 2201
et seq.
; 44 U.S.C. 3101
et seq.
Cross Reference:
For special rules applying to proceedings in Indian Probate (Determination of Heirs and Approval of Wills, Except for Members of the Five Civilized Tribes and Osage Indians), including hearings and appeals within the jurisdiction of the Office of Hearings and Appeals, see title 43, Code of Federal Regulations, part 4, subpart D, and part 30; Funds of deceased Indians other than the Five Civilized Tribes, see title 25 Code of Federal Regulations, part 115.
Subpart A—Introduction
§ 15.1
What is the purpose of this part?
(a) This part contains the procedures that we follow to initiate the probate of the trust estate of a deceased person for whom the United States holds an interest in trust or restricted land or trust personalty. This part tells you how to file the necessary documents to probate the trust estate. This part also describes how probates will be processed by the Bureau of Indian Affairs (BIA), and when probates will be forwarded to the Office of Hearings and Appeals (OHA) for disposition.
(b) The following provisions do not apply to Alaska property interests:
(1) Section 15.202(c), (d), (e)(2), (n), and (o); and
(2) Section 15.401(b).
§ 15.2
What definitions do I need to know?
Act
means the Indian Land Consolidation Act and its amendments, including the American Indian Probate Reform Act of 2004 (AIPRA), Pub. L. 108-374, as codified at 25 U.S.C. 2201
et seq.
Administrative law judge (ALJ)
means an administrative law judge with the Office of Hearings and Appeals appointed under the Administrative Procedure Act, 5 U.S.C. 3105.
Affidavit
means a written declaration of facts by a person that is signed by that person, swearing or affirming under penalty of perjury that the facts declared are true and correct to the best of that person's knowledge and belief.
Agency means:
(1) The Bureau of Indian Affairs (BIA) agency office, or any other designated office in BIA, having jurisdiction over trust or restricted land and trust personalty; and
(2) Any office of a tribe that has entered into a contract or compact to fulfill the probate function under 25 U.S.C. 450f or 458cc.
Attorney Decision Maker (ADM)
means an attorney with OHA who conducts a summary probate proceeding and renders a decision that is subject to de novo review by an administrative law judge or Indian probate judge.
BIA
means the Bureau of Indian Affairs within the Department of the Interior.
Child
means a natural or adopted child.
Codicil
means a supplement or addition to a will, executed with the same formalities as a will. It may explain, modify, add to, or revoke provisions in an existing will.
Consolidation agreement
means a written agreement under the provisions of 25 U.S.C. 2206(e) or 2206(j)(9), entered during the probate process, approved by the judge, and implemented by the probate order, by which a decedent's heirs and devisees consolidate interests in trust or restricted land.
Creditor
means any individual or entity that has a claim for payment from a decedent's estate.
Day
means a calendar day.
Decedent
means a person who is deceased.
Decision or order
(or
decision and order
) means:
(1) A written document issued by a judge making determinations as to heirs, wills, devisees, and the claims of creditors, and ordering distribution of trust or restricted land or trust personalty;
(2) The decision issued by an attorney decision maker in a summary probate proceeding; or
(3) A decision issued by a judge finding that the evidence is insufficient to determine that a person is dead by reason of unexplained absence.
Department
means the Department of the Interior.
Devise
means a gift of property by will. Also, to give property by will.
Devisee
means a person or entity that receives property under a will.
Eligible heir
means, for the purposes of the Act, any of a decedent's children, grandchildren, great grandchildren, full siblings, half siblings by blood, and parents who are any of the following:
(1) Indian;
(2) Lineal descendents within two degrees of consanguinity of an Indian; or
(3) Owners of a trust or restricted interest in a parcel of land for purposes of inheriting—by descent, renunciation, or consolidation agreement—another trust or restricted interest in such parcel from the decedent.
Estate
means the trust or restricted land and trust personalty owned by the decedent at the time of death.
Formal probate proceeding
means a proceeding, conducted by a judge, in which evidence is obtained through the testimony of witnesses and the receipt of relevant documents.
Heir
means any individual o
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