Issuance of Patents in Fee, Certificates of Competency, Removal of Restrictions, and Sale of Certain Indian Lands

DEPARTMENT OF THE INTERIOR

25 CFR Part 152

RIN 1076-AD42

Issuance of Patents in Fee, Certificates of Competency, Removal

of Restrictions, and Sale of Certain Indian Lands

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Proposed rule.

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SUMMARY: The purpose of this proposed rule making action is to revise

the Issuance of Patents in Fee, Certificates of Competency, Removal of

Restrictions, and Sale of Certain Indian Lands regulations. This rule

was identified for reinvention under the National Performance Review.

It is written in plain English to make the rule easier to read and

understand for Indian landowners and Bureau realty staff.

DATES: Comments must be received on or before September 3, 1996.

ADDRESSES: Mail or hand carry your comments to Terrance L. Virden,

Acting Director, Office of Trust Responsibilities, Bureau of Indian

Affairs, Department of the Interior, 1849 C Street, N.W., MS 4513 MIB,

Washington, D.C. 20240. Comments may be hand delivered from 9:00 a.m.

to 4:00 p.m., Monday through Friday or sent by facsimile to Facsimile

No. (202) 219-1065.

FOR FURTHER INFORMATION CONTACT:

Alice Harwood, Acting Chief, Division of Real Estates Services, Office

of Trust Responsibilities, Bureau of Indian Affairs, Department of the

Interior, 1849 C Street, N.W., MS 4513 MIB, Washington, D.C. 20240,

Telephone No. (202) 208-7737.

SUPPLEMENTARY INFORMATION: The primary author of this document is Pearl

Kennedy, Realty Specialist, Division of Real Estate Services, Bureau of

Indian Affairs, Department of the Interior. The proposed rule has been

rewritten to facilitate its use by the general public and the

individual Indians affected by the rule. Sections that no longer apply

have been deleted and sections added for clarification. No substantive

revisions are proposed in this rule.

t is Pearl

Kennedy, Realty Specialist, Division of Real Estate Services, Bureau of

Indian Affairs, Department of the Interior. The proposed rule has been

rewritten to facilitate its use by the general public and the

individual Indians affected by the rule. Sections that no longer apply

have been deleted and sections added for clarification. No substantive

revisions are proposed in this rule.

The authority to issue rules and regulations is vested in the

Secretary of the Interior by 5 U.S.C. 301 and sections 463 and 465 of

the Revised Statutes, 25 U.S.C. 2 and 9, and delegated to the Assistant

Secretary--Indian Affairs by 209 DM 8.

Publication of the proposed rule by the Department of the Interior

(Department) provides the public an opportunity to participate in the

rulemaking process. Interested persons may submit written comments

regarding the proposed rule to the location identified in the

``addresses'' section of this document.

The Department has determined that this rule:

does not have significant federalism effects.

is not a major rule under E.O. 12866 and will not require

a review by the Office of Management and Budget.

will not have a significant economic impact on a

substantial number of small entities under the Regulatory Flexibility

Act (5 U.S.C. 601 et. seq.) because this rule applies only to Indian

applicants.

does not have significant takings implications under E.O.

12630.

does not have significant effects on the economy, nor will

it result in increases in costs or prices for consumers, individual

industries, Federal, State, or local governments, agencies, or

geographical regions.

does not have any adverse effects on competition,

employment, investment, productivity, innovation, or the export/import

market.

is categorically excluded from the National Environmental

Policy Act of 1969 because it is of an administrative, technical, and

procedural nature. Therefore, neither an environmental assessment nor

an environmental impact statement is warranted

ographical regions.

does not have any adverse effects on competition,

employment, investment, productivity, innovation, or the export/import

market.

is categorically excluded from the National Environmental

Policy Act of 1969 because it is of an administrative, technical, and

procedural nature. Therefore, neither an environmental assessment nor

an environmental impact statement is warranted.

does not impose any unfunded mandates on any governmental

or private entity and is in compliance with the provisions of the

Unfunded Mandates Act of 1995.

is exempt by OMB from the provisions of the Paperwork

Reduction Act of 1995 (44 U.S.C. 3507(d)) and does not require a review

by the Office of Management and Budget.

List of Subjects in Part 152

Indians--lands.

For the reasons given in the preamble, we propose to revise Part

152 to Title 25 Chapter 1 of the Code of Federal Regulations, as set

forth below.

PART 152--ISSUANCE OF PATENTS IN FEE, CERTIFICATES OF COMPETENCY,

REMOVAL OF RESTRICTIONS, AND SALE OF CERTAIN INDIAN LANDS

Sec.

152.1 What are the definitions of the terms used in this part?

Issuing Patents in Fee, Certificates of Competency, or Orders Removing

Restrictions

152.2 Who can apply for a patent in fee?

152.3 How do I apply for a patent in fee?

152.4 What happens when I apply for a patent in fee?

152.5 Will patents in fee be issued to non-Indians and Indians with

whom a special relationship does not exist?

152.6 Who can apply for a certificate of competency?

152.7 What happens when I apply for a certificate of competency?

152.8 Can certain Osage Indian adults apply for a certificate of

competency?

152.9 Who can apply for an order removing restrictions?

152.10 How do I apply for an order removing restrictions?

152.11 What happens when I apply for an order removing

restrictions?

Order Removing Restrictions for Members of the Five Civilized Tribes

152.12 If I am a member of the Five Civilized Tribes, how do I

apply for removal of restrictions under authority other than section

2(a) of t

cy?

152.9 Who can apply for an order removing restrictions?

152.10 How do I apply for an order removing restrictions?

152.11 What happens when I apply for an order removing

restrictions?

Order Removing Restrictions for Members of the Five Civilized Tribes

152.12 If I am a member of the Five Civilized Tribes, how do I

apply for removal of restrictions under authority other than section

2(a) of the Act of August 11, 1955?

152.13 If I am a member of the Five Civilized Tribes, what happens

when I apply for removal of restrictions under section 2(a) of the

Act of August 11, 1955?

152.14 If I am a member of the Five Civilized Tribes, can the

restrictions be removed from my land without an application?

152.15 If I am a member of the Five Civilized Tribes, what happens

when a removal of restrictions is issued to me without an

application?

152.16 If I am a member of the Five Civilized Tribes, what is the

effect of an order removing restrictions from my land under the Act

of August 11, 1955 (69 Stat. 666)?

Sales, Exchanges, and Conveyances of Trust or Restricted Lands

152.17 Can I sell, exchange, or otherwise convey my Indian land?

152.18 Can a natural guardian or person designated by the Secretary

sell my Indian land?

152.19 Can fiduciaries sell my Indian land?

152.20 Can the Secretary sell land owned by more than one person?

152.21 Can a tribe sell or exchange tribal land?

152.22 Is the Secretary's approval necessary to convey individual-

owned trust or restricted lands or lands owned by a tribe?

se convey my Indian land?

152.18 Can a natural guardian or person designated by the Secretary

sell my Indian land?

152.19 Can fiduciaries sell my Indian land?

152.20 Can the Secretary sell land owned by more than one person?

152.21 Can a tribe sell or exchange tribal land?

152.22 Is the Secretary's approval necessary to convey individual-

owned trust or restricted lands or lands owned by a tribe?

152.23 Where do I file an application for sale, exchange, or gift?

152.24 Is an appraisal necessary?

152.25 Can I negotiate a sale, gift, or exchange of my trust or

restricted lands?

152.26 How is my land advertised for sale?

152.27 What procedures are followed for an advertised sale?

152.28 What happens after the bid closing?

152.29 Can the Secretary reject bids or disapprove a sale?

152.30 Can employees of Indian Affairs bid?

152.31 Who pays for the cost of conveyance and fees?

152.32 Who pays irrigation fees and payments?

Partitions in Kind of Inherited Allotments

152.33 Can I partition my Indian lands?

Mortgages and Deeds of Trust To Secure Loans to Indians

152.34 Can I mortgage my land?

152.35 Can I make a sale on a deferred payment plan?

Denials Of Applications

152.36 When does the Secretary deny approval of my application?

152.37 Am I notified of a denial?

Receiving Information

152.38 Who can receive information regarding status of applications

for patents in fee, certificates of competency, or orders removing

restrictions of trust or restricted Indians lands?

Authority: 5 U.S.C. 301. Interpret or apply sec. 7, 32 Stat.

275; 34 Stat. 1018; sec. 1, 35 Stat. 444; sec. 1 and 2, 36 Stat.

855, as amended, 856, as amended; sec. 17, 39 Stat. 127; 40 Stat.

579; 62 Stat. 236; sec. 2, 40 Stat. 606; 68 Stat. 358; 69 Stat. 666;

25 U.S.C. 355, 372, 373, 378, 379, 404, 405, 483, unless otherwise

noted.

Cross-Reference: See part 159 and part 160 in this chapter for

further regulations regarding sale of irrigable lands.

Sec. 152.1 What are the definitions of the terms used in this part?

855, as amended, 856, as amended; sec. 17, 39 Stat. 127; 40 Stat.

579; 62 Stat. 236; sec. 2, 40 Stat. 606; 68 Stat. 358; 69 Stat. 666;

25 U.S.C. 355, 372, 373, 378, 379, 404, 405, 483, unless otherwise

noted.

Cross-Reference: See part 159 and part 160 in this chapter for

further regulations regarding sale of irrigable lands.

Sec. 152.1 What are the definitions of the terms used in this part?

Agency means an Indian agency or other field unit of the Bureau of

Indian Affairs having trust or restricted Indian land under its

immediate jurisdiction.

Competent means that you posses sufficient ability, knowledge,

experience, and judgment to manage your business affairs, including the

administration,use, investment, and disposition of any property you own

and the income or proceeds derived from the property, with a reasonable

degree of prudence and wisdom to prevent the loss of such property or

benefits. (Act of August 11, 1955 (69 Stat. 666)).

Fiduciary means a person acting primarily for another's benefit

such as a trustee, guardian, or conservator.

I and my mean the Indian applicant.

Patent in fee means an instrument of conveyance issued by the

government to transfer the title of trust, or any interest in trust

land, to a non-Indian or Indian determined to be competent. A patent in

fee removes all restrictions against alienation of all restriction

property and terminates the trust responsibility of the Secretary of

the Interior for the land.

Restricted land means land or any interest therein, the title to

which is held by an individual Indian, subject to Federal restrictions

against alienation or encumbrance.

Secretary means the Secretary of the Interior or authorized

representative acting under delegated authority.

Tribe means any Indian tribe, band, nation, pueblo, community,

corporation, rancheria, colony, or other group of Indians.

Trust land means land or any interest therein held in trust by the

United States for an individual Indian or tribe

restrictions

against alienation or encumbrance.

Secretary means the Secretary of the Interior or authorized

representative acting under delegated authority.

Tribe means any Indian tribe, band, nation, pueblo, community,

corporation, rancheria, colony, or other group of Indians.

Trust land means land or any interest therein held in trust by the

United States for an individual Indian or tribe.

We means the Secretary of the Interior or authorized representative

acting under delegated authority.

You means the Indian applicant.

Your refers to the Indian applicant.

Issuing Patents in Fee, Certificates of Competency, or Orders

Removing Restrictions

Sec. 152.2 Who can apply for a patent in fee?

Indians 21 years of age or over. The written application must be in

a form approved by the Secretary and filed with the agency having

immediate jurisdiction over the land.

Sec. 152.3 How do I apply for a patent in fee?

You must complete and submit a written application in the form

approved by the Secretary and file it with the agency superintendent

having immediate jurisdiction over the land.

Sec. 152.4 What happens when I apply for a patent in fee?

(a) If we determine that your are competent, we will issue you a

fee patent and give you an inventory of your estate. (Acts of Feb. 8,

1887 (24 Stat. 388), as amended (25 U.S.C. 349); June 25, 1910 (36

Stat. 855), as amended (25 U.S.C. 372); and May 14, 1948 (62 Stat. 236;

25 U.S.C. 483); and other authorizing acts.)

(b) If we deny your application, we will tell you why in a letter.

You have the right to appeal the decision under 25 CFR part 2.

(c) White Earth Reservation: We will issue a patent in fee to any

adult Indian of mixed-blood owning land within the White Earth

Reservation in the State of Minnesota. When you apply, we do not

consider your competency (Act of March 1, 1907 (34 Stat. 1015)).

cts.)

(b) If we deny your application, we will tell you why in a letter.

You have the right to appeal the decision under 25 CFR part 2.

(c) White Earth Reservation: We will issue a patent in fee to any

adult Indian of mixed-blood owning land within the White Earth

Reservation in the State of Minnesota. When you apply, we do not

consider your competency (Act of March 1, 1907 (34 Stat. 1015)).

(d) Fort Peck Reservation: Interests in oil and gas underlying

certain allotments on the Fort Peck Reservation were granted to certain

Indians to be held in trust for them. Provisions were made to issue

patents in fee for such oil and gas or patents in fee for land in

certain circumstances (Act of June 30, 1954 (68 Stat. 358)).

(1) Title to the entire interest in the oil and gas, underlying a

parcel of land within the Fort Peck Reservation, was conveyed by the

act in fee simple status to Indian grantees who received a patent or

patent in fee before June 30, 1954.

(2) We will convey by patent, without application, unrestricted fee

simple title to the entire interest in oil and gas granted by this act

to Indians to whom a fee patent has been issued at any time for any

land within the Fort Peck Reservation or who have been determined to be

competent.

(3) When we determine that the entire interest in a tract of land

on the Fort Peck Reservation is owned by a competent Indian grantee of

oil and gas under the act, we will issue fee patents to them, covering

all interests in the land, without application.

Sec. 152.5 Will patents in fee be issued to non-Indians and Indians

with whom a special relationship does not exist?

We will issue a patent in fee to any non-Indian, or Indian to whom

the United States owes no trust responsibility, without application,

whenever we determine that trust land, or any interest in trust land,

has been acquired through inheritance or devise.

Sec. 152.6 Who can apply for a certificate of competency?

sued to non-Indians and Indians

with whom a special relationship does not exist?

We will issue a patent in fee to any non-Indian, or Indian to whom

the United States owes no trust responsibility, without application,

whenever we determine that trust land, or any interest in trust land,

has been acquired through inheritance or devise.

Sec. 152.6 Who can apply for a certificate of competency?

Indians 21 years old or over, except certain adult members of the

Osage Indian Tribe as provided in Sec. 152.8, who hold land or an

interest in land under a restricted fee patent. The written application

must be in a form approved by the Secretary and filed with the agency

having immediate jurisdiction over the land.

Sec. 152.7 What happens when I apply for a certificate of competency?

(a) If we determine that you are competent, we will approve your

application, and a certificate of competency will be issued. The

delivery of the certificate will have the effect of removing the

restrictions from the described land. (Act of June 25, 1910 (36 Stat.

855), as amended (25 U.S.C. 372)).

(b) If we deny your request, we will tell you why in a letter. You

have the right to appeal this action under part 2 of this chapter.

Sec. 152.8 Can certain Osage Indian adults apply for a certificate of

competency?

Adult members of the Osage Indian Tribe of one-half or more Indian

blood may apply for a certificate of competency. Applications must be

in the form approved by the Secretary. If the Secretary determines that

you are competent, a certificate of competency will be issued removing

restrictions against alienation on all restricted property and

terminating the United States trust responsibility on all restricted

property. Your Osage headright interest remains under the trust

responsibility of the United States. For regulations pertaining to the

issuance of certificates of competency to adult Osage Indians of less

than one-half Indian blood, see part 154 of this chapter.

restrictions against alienation on all restricted property and

terminating the United States trust responsibility on all restricted

property. Your Osage headright interest remains under the trust

responsibility of the United States. For regulations pertaining to the

issuance of certificates of competency to adult Osage Indians of less

than one-half Indian blood, see part 154 of this chapter.

Sec. 152.9 Who can apply for an order removing restrictions?

(a) You can apply for an order removing restrictions if you are:

(1) An Indian not under legal disability under the laws of the

State where you reside or where the land is located; or

(2) A court-appointed guardian or conservator of any Indian.

(b) If you are a member of the Five Civilized Tribes, see

Sec. 152.13.

Sec. 152.10 How do I apply for an order removing restrictions?

(a) You must send a written application, in the form approved by

the Secretary, telling why you need the removal of restrictions, to the

agency having immediate jurisdiction over the lands.

(b) If you are a member of the Five Civilized Tribes, see

Sec. 152.12

Sec. 152.11 What happens when I apply for an order removing

restrictions?

(a) If we determines that you are competent or that a removal of

restrictions is in your best interest, we will approve your application

and issue an order removing restrictions from the described lands.

(b) If you are a member of the Five Civilized Tribes, see

Sec. 152.13.

the Five Civilized Tribes, see

Sec. 152.12

Sec. 152.11 What happens when I apply for an order removing

restrictions?

(a) If we determines that you are competent or that a removal of

restrictions is in your best interest, we will approve your application

and issue an order removing restrictions from the described lands.

(b) If you are a member of the Five Civilized Tribes, see

Sec. 152.13.

(c) If we deny the application, we will tell you why in a letter.

You have the right to appeal this action under part 2 of this chapter.

Order Removing Restrictions for Members of the Five Civilized

Tribes

Sec. 152.12 If I am a member of the Five Civilized Tribes, how do I

apply for removal of restrictions under authority other than section

2(a) of the Act of August 11, 1955?

When you ask us to remove restrictions on your restricted lands

under authority other than section 2(a) of the Act of August 11, 1955

(69 Stat. 666), you may not include lands, or interest in lands,

acquired by inheritance or devise. You can apply in either of the two

following ways:

(a) If you apply for an unconditional removal, we will grant the

removal if we determine that you are competent.

(b) If you apply for a conditional removal, we will grant the

removal. The conditional order will be effective only and

simultaneously with the execution of a deed by you and upon completion

of an advertised or negotiated sale acceptable to us.

Sec. 152.13 If I am a member of the Five Civilized Tribes, what

happens when I apply for removal of restrictions under section 2(a) of

the Act of August 11, 1955?

(a) If we determine that you are competent, we will issue an order

removing restrictions having the effect stated in Sec. 152.16.

(b) If your application is rejected, this action is not subject to

administrative appeal.

le to us.

Sec. 152.13 If I am a member of the Five Civilized Tribes, what

happens when I apply for removal of restrictions under section 2(a) of

the Act of August 11, 1955?

(a) If we determine that you are competent, we will issue an order

removing restrictions having the effect stated in Sec. 152.16.

(b) If your application is rejected, this action is not subject to

administrative appeal.

(c) If the Secretary rejects, or takes no action within 90 days of

the application date, you may apply to the State district court in the

county in which you reside. If that State district court issues an

order, it will have the effect stated in Sec. 152.16.

Sec. 152.14 If I am a member of the Five Civilized Tribes, can the

restrictions be removed from my land without an application?

(a) Yes. When you are determined to be competent, section 2(b) of

the Act of August 11, 1955 (69 Stat. 666), authorizes the removal of

restrictions on property belonging to members of the Five Civilized

Tribes. The Secretary will issue an order removing restrictions without

an application. We will tell you in a letter that we intend to issue an

order removing restrictions 30 days after the date of the letter.

(b) This decision may be appealed under part 2 of this chapter

within the 30 days.

(c) All administrative appeals will postpone the issuance of this

order.

(d) An order removing restrictions will be issued when:

(1) The decision is not appealed within 30 days after the date of

the notice;

(2) Any dismissal of an appeal is not appealed within the

prescribed time limit; or

(3) The final appeal is dismissed.

Sec. 152.15 If I am a member of the Five Civilized Tribes, what

happens when a removal of restrictions is issued to me without an

application?

When an order removing restrictions is issued, under Sec. 152.14:

(a) A copy of the order will be delivered to you, or any person

acting on your behalf, and the Board of County Commissioners for the

county in which you reside.

l appeal is dismissed.

Sec. 152.15 If I am a member of the Five Civilized Tribes, what

happens when a removal of restrictions is issued to me without an

application?

When an order removing restrictions is issued, under Sec. 152.14:

(a) A copy of the order will be delivered to you, or any person

acting on your behalf, and the Board of County Commissioners for the

county in which you reside.

(b) Under the terms the Act of August 11,1955 (69 Stat. 66), the

Secretary will tell you and the Board of County Commissioners in a

letter that you and/or the Board have the right to appeal within six

months of the date of this letter. The appeal must be to the State

district court for the district in which you reside. The appeal will

stay the effective date of the order until such proceedings are

concluded. If the State district court dismisses the appeal, the order

will become effective six months after the date of the letter. The

effect of the order is described in Sec. 152.16.

Sec. 152.16 IfI am a member of the Five Civilized Tribes, what is the

effect of an order removing restrictions from my land under the Act of

August 11, 1955 (69 Stat. 666)?

(a) The effective date will remove all jurisdiction and supervision

of the Bureau of Indian Affairs.

(b) Full ownership and control of money and property will be given

to you, and the Secretary will issue title documents if necessary.

(c) The Secretary may make provisions to insure repayment of money

lent to you by the Federal Government or by an Indian tribe.

ugust 11, 1955 (69 Stat. 666)?

(a) The effective date will remove all jurisdiction and supervision

of the Bureau of Indian Affairs.

(b) Full ownership and control of money and property will be given

to you, and the Secretary will issue title documents if necessary.

(c) The Secretary may make provisions to insure repayment of money

lent to you by the Federal Government or by an Indian tribe.

(d) The interest of any lessee or permittee in any lease, contract,

or permit that is outstanding when an order becomes effective will be

preserved.

Sales, Exchanges, and Conveyances of Trust or Restricted Lands

Sec. 152.17 Can I sell, exchange, or otherwise convey my Indian land?

Trust or restricted lands acquired by allotment, devise,

inheritance, purchase, exchange, or gift may be sold, exchanged, and

conveyed by you with the approval of the Secretary or by the Secretary

with your consent under the Acts of May 27, 1902 (32 Stat. 275; 25

U.S.C. 379); May 17, 1906 (34 Stat. 197), as amended August 2, 1956 (70

Stat. 954; 48 U.S.C. 357); March 1, 1907 (34 Stat. 1018; 25 U.S.C.

405); May 29, 1908 (35 Stat. 444; 25 U.S.C. 404); June 25, 1910 (36

Stat. 855; 25 U.S.C. 372), as amended May 25, 1926 (44 Stat. 629; 48

U.S.C. 355a-355d); June 18, 1934 (48 Stat. 984; U.S.C. 464); and May

14, 1948

(62 Stat. 236; 25 U.S.C. 483); and other authorizing acts.

Sec. 152.18 Can a natural guardian or person designated by the

Secretary sell my Indian land?

(a) Under the Act of May 29, 1908 (35 Stat. 444; 25 U.S.C. 404), we

may sell trust or restricted land belonging to:

(1) A minor, with the consent of the natural guardian of the minor;

(2) Indian orphans without a natural guardian; and

(3) Indians who are non compos mentis or otherwise under legal

disability.

Can a natural guardian or person designated by the

Secretary sell my Indian land?

(a) Under the Act of May 29, 1908 (35 Stat. 444; 25 U.S.C. 404), we

may sell trust or restricted land belonging to:

(1) A minor, with the consent of the natural guardian of the minor;

(2) Indian orphans without a natural guardian; and

(3) Indians who are non compos mentis or otherwise under legal

disability.

(b) The authority contained in the Act of May 29, 1908 is not

applicable to lands in Oklahoma, Minnesota, and South Dakota, nor to

lands authorized to be sold by the Act of May 14, 1948 (62 Stat. 236;

25 U.S.C. 483).

Sec. 152.19 Can fiduciaries sell my Indian land?

With our approval or consent, guardians, conservators, or other

fiduciaries appointed by State courts, or by tribal courts operating

under approved constitutions or law and order codes, may convey trust

or restricted land belonging to Indians who are minors, no compos

mentis, or otherwise under legal disability. This section is subject to

the exceptions contained in 25 U.S.C. 954(b).

Sec. 152.20 Can the Secretary sell land owned by more than one

person?

Under the Act of June 25, 1910 (36 Stat. 855), as amended (25

U.S.C. 372), lands or all interests in land may be sold if the

Secretary determines that one or more of the heirs who have inherited

trust land are incapable of managing their own affairs. This authority

does not apply to lands authorized to be sold under the Act of May 14,

1948 (62 Stat. 236; 25 U.S.C. 483).

Sec. 152.21 Can a tribe sell or exchange tribal land?

36 Stat. 855), as amended (25

U.S.C. 372), lands or all interests in land may be sold if the

Secretary determines that one or more of the heirs who have inherited

trust land are incapable of managing their own affairs. This authority

does not apply to lands authorized to be sold under the Act of May 14,

1948 (62 Stat. 236; 25 U.S.C. 483).

Sec. 152.21 Can a tribe sell or exchange tribal land?

Certain tribal land may be sold or exchanged under the Acts of

February 14, 1920 (41 Stat. 415; 25 U.S.C. 294); June 18, 1934 (48

Stat. 984; 25 U.S.C. 464); August 10, 1939 (53 Stat. 1351; 25 U.S.C.

463(e)); July 1, 1948 (62 Stat. 1214); June 4, 1953 (67 Stat 41; 25

U.S.C. 293(a)); July 28, 1955 (69 Stat. 392), as amended August 31,

1964 (78 Stat. 747; 25 U.S.C. 608-608c); June 18, 1956 (70 Stat. 290;

25 U.S.C. 403a-2); July 24, 1956 (70 Stat. 626); May 19, 1958 (72 Stat.

121; 25 U.S.C. 463, Note); September 2, 1958 (72 Stat. 1762); April 4,

1960 (74 Stat. 13); April 29, 1960) 74 Stat. 85); December 11, 1963 (77

Stat. 349); August 11, 1964 (78 Stat. 389); January 12, 1983 (96 Stat.

2517, 25 U.S.C. 2201), and under other authorizing acts. Except as

otherwise provided by law, the regulations in this part 152 apply to

sale or exchanges of tribal land.

Sec. 152.22 Is the Secretary's approval necessary to convey

individual-owned trust or restricted lands or lands owned by a tribe?

(a) Individual lands. Yes, except inherited lands of the Five

Civilized Tribes, see Sec. 152.12. Influencing an Indian to execute an

instrument purporting to convey any interest in trust land, or the

offering of any instrument for record is prohibited, and criminal

penalties may be incurred. (See 25 U.S.C. 202 and 348.)

y

individual-owned trust or restricted lands or lands owned by a tribe?

(a) Individual lands. Yes, except inherited lands of the Five

Civilized Tribes, see Sec. 152.12. Influencing an Indian to execute an

instrument purporting to convey any interest in trust land, or the

offering of any instrument for record is prohibited, and criminal

penalties may be incurred. (See 25 U.S.C. 202 and 348.)

(b) Tribal lands. Yes, except where acts of Congress authorize

sales without approval. (See 25 U.S.C. 177.)

Sec. 152.23 Where do I file an application for sale, exchange, or

gift?

Applications must be filed in a form approved by the Secretary with

the agency having immediate jurisdiction over the land. Applications

may be approved if the transaction appears to be in the long-range best

interest of the owner or owners, or under conditions in Sec. 152.25(d).

Sec. 152.24 Is an appraisal necessary?

Yes. Except as otherwise provided by the Secretary, we must do an

appraisal to determine the fair market value before making or approving

a sale, exchange, or other transfer of title of trust or restricted

land.

Sec. 152.25 Can I negotiate a sale, gift, or exchange of my trust or

restricted lands?

Sales, exchanges, and gifts specifically described in paragraphs

(a), (b), (c), and (d) of this section may be negotiated; all other

sales must be by advertised sale, or as determined by the Secretary.

With the approval of the Secretary:

(a) Consideration not less than the appraised fair market value.

You may negotiate and sell trust or restricted land for not less than

the appraised fair market value when:

(1) The sale is to the United States, States, or political

subdivisions, or sale for a public purpose.

(2) The sale is to the tribe or another Indian; or

(3) The Secretary determines it is impractical to advertise.

tary:

(a) Consideration not less than the appraised fair market value.

You may negotiate and sell trust or restricted land for not less than

the appraised fair market value when:

(1) The sale is to the United States, States, or political

subdivisions, or sale for a public purpose.

(2) The sale is to the tribe or another Indian; or

(3) The Secretary determines it is impractical to advertise.

(b) Exchange at appraised fair market value. You may exchange trust

or restricted land in combination with other things of value. The value

you receive in the exchange must be substantially equal to the

appraised fair market value of the consideration given by you.

(c) Sale to co-owners. You may negotiate and sell trust or

restricted land to a co-owner. The consideration may be less than the

appraised fair market value, if we determine there is a special

relationship between the co-owners or special circumstances exist.

(d) Gifts and conveyances for less than the appraised fair market

value. You may convey trust or restricted land for less than the

appraised fair market value or for no consideration, when:

(1) The prospective grantee is your spouse, brother, sister, lineal

ancestor of Indian blood, or lineal descendant;

(2) Some other special relationship exists between you and grantee;

or

(3) The Secretary determines that special circumstances exist that

warrant the approval of the conveyance.

Sec. 152.26 How is my land advertised for sale?

(a) Once your application is approved, a notice of sale will be

published not less than 30 days prior to the date fixed for the sale. A

shorter period may be authorized by the Secretary.

ibed in the notice of sale. A cash

deposit may be submitted in lieu of these negotiable instruments at the

bidder's risk. Tribes submitting bids under this paragraph may

guarantee the required 10 percent deposit by an appropriate resolution.

(2) The sealed envelopes containing the bids will be publicly

opened at

the time fixed for sale. The bids will be announced and appropriately

recorded.

(b) when the Secretary recognizes that a tribe or a tribal member

has a valid interest in acquiring the trust or restricted lands offered

for sale, the following apply:

(1) With the consent of the owner and when the notice of sale so

states, the tribe or tribal members have the right to meet the high

bid.

(2) An oral auction may be held following the bid opening if:

(i) The tribe is not the highest bidder;

(ii) One or more acceptable sealed bids are received; or

(iii) When so stated in the notice of sale.

(c) Bidding in the auction will be limited to the tribe and to

those who submitted sealed bids at 75 percent or more of the appraised

value of the land being auctioned. At the conclusion of the auction,

the highest bidder must increase his deposit to not less than 10

percent of his auction bid.

Sec. 152.28 What happens after the bid closing?

(a) The apparent highest acceptable bid will be publicly announced.

The deposits submitted by unsuccessful bidders will be returned

immediately. The apparent successful bidder's deposit will be held in a

special account.

(b) If the highest bid received is less than the appraised fair

market value of the land, the Secretary, with the consent of the owner,

may accept that bid if:

(1) The amount approximates said appraised fair market value; and

(2) The amount is the highest price that may be realized.

ers will be returned

immediately. The apparent successful bidder's deposit will be held in a

special account.

(b) If the highest bid received is less than the appraised fair

market value of the land, the Secretary, with the consent of the owner,

may accept that bid if:

(1) The amount approximates said appraised fair market value; and

(2) The amount is the highest price that may be realized.

(c) The Secretary will notify the apparent successful bidder that

the remainder of the purchase price must be submitted within 30 days.

(1) The Secretary may extend the time for payment of the balance

due upon showing of cause.

(2) If the balance due is not paid within the time allowed, the bid

will be rejected, and the apparent successful bidder's 10 percent

deposit will be forfeited to the landowner.

(d) The issuance of the patent or delivery of a deed to the

purchaser will not be authorized until the balance of the purchase

price has been paid. The fee patent may be ordered in cases where the

purchaser is obtaining a loan from an agency of the Federal Government,

and that agency has given the Secretary a commitment that the balance

due will be paid when the fee patent is issued.

Sec. 152.29 Can the Secretary reject bids or disapprove a sale?

Yes. The Secretary reserves the right to reject any and all bids

before or after the award or prior to the issuance of a patent or

delivery of a deed, when it has been determined the rejection is in the

best interests of the Indian owner.

Sec. 152.30 Can employees of Indian Affairs bid?

No. No person employed in Indian Affairs will directly or

indirectly bid, make, or prepare any bid, or assist any bidder in

preparing his bid. Sales between Indians, either of whom is an employee

of the U.S. Government, are governed by the provisions of part 140 of

this chapter (see 25 U.S.C. 68 and 441).

Sec. 152.31 Who pays for the cost of conveyance and fees?

oyees of Indian Affairs bid?

No. No person employed in Indian Affairs will directly or

indirectly bid, make, or prepare any bid, or assist any bidder in

preparing his bid. Sales between Indians, either of whom is an employee

of the U.S. Government, are governed by the provisions of part 140 of

this chapter (see 25 U.S.C. 68 and 441).

Sec. 152.31 Who pays for the cost of conveyance and fees?

(a) Under the Act of February 14, 1920 (41 Stat. 415), as amended

by the Act of March 1, 1933 (47 Stat. 1417; 25 U.S.C. 413), the

Secretary may collect from a purchaser reasonable fees for work

performed or expense incurred in the transaction. The amount collected

will be deposited to the credit of the United States as general fund

receipts, except as stated in paragraph (b) of the section.

(1) The amount of the fee will be $22.50 for each transaction.

(2) We may waive or reduce the fee to a lesser amount if justified.

(b) Subject to our approval, an alternate schedule of fees may be

established if the cost of the work performed or expenses incurred are

to be paid with tribal funds. Part of the fees may be credited to the

tribe if appropriate.

(c) The collection of cost from the tribe may be waived if the

tribe is the purchaser.

Sec. 152.32 Who pays irrigation fees and payments?

Under the Act of July 1, 1932 (47 Stat. 564; 25 U.S.C. 386a),

collection of all construction costs against any Indian-owned lands

within Indian irrigation projects is deferred as long as Indian title

has not been extinguished. This statute applies only where the land is

owned by Indians either in trust or restricted status.

s the purchaser.

Sec. 152.32 Who pays irrigation fees and payments?

Under the Act of July 1, 1932 (47 Stat. 564; 25 U.S.C. 386a),

collection of all construction costs against any Indian-owned lands

within Indian irrigation projects is deferred as long as Indian title

has not been extinguished. This statute applies only where the land is

owned by Indians either in trust or restricted status.

(a) Any person, whether Indian or non-Indian, acquiring Indian

lands that are a part of an Indian Irrigation project must enter into

an agreement to:

(1) Pay the pro rata share of the construction of the project

chargeable to the land;

(2) Pay all construction costs that accrue in the future; and

(3) Pay all future charges assessable to the land which are based

on the annual cost of operation and maintenance of the irrigation

system.

(b) Any operation and maintenance charges that are delinquent when

Indian land is sold will be deducted from the proceeds of sale unless

other acceptable arrangements are made to provide for the payment prior

to the approval of the sale.

(c) A lien clause covering all unpaid irrigation construction

costs, past and future, will be inserted in the patent or other

instrument of conveyance issued to all purchasers of restricted or

trust lands that are under an Indian irrigation project.

Partitions in Kind of Inherited Allotments

Sec. 152.33 Can I partition my Indian lands?

vide for the payment prior

to the approval of the sale.

(c) A lien clause covering all unpaid irrigation construction

costs, past and future, will be inserted in the patent or other

instrument of conveyance issued to all purchasers of restricted or

trust lands that are under an Indian irrigation project.

Partitions in Kind of Inherited Allotments

Sec. 152.33 Can I partition my Indian lands?

(a) Land may be partitioned without an application if we find that

any one or more inherited trust allotments are capable of partition in

kind to the advantage of the heirs regardless of their competency.

Patents in fee will be issued to the competent heirs for the lands set

apart to them. The trust period will terminate in accordance with the

terms of the original patent or order of extension of the trust period

set out in the patent. (Act of May 18, 1916, (39 Stat. 127; 25 U.S.C.

378)). The authority contained in the Act of May 18, 1916, does not

apply to lands authorized to be sold by the Act of May 14, 1948, nor to

land held in restricted fee status.

(b) Heirs of a deceased allottee may submit a written application

on an approved form for a partition of their trust or restricted land.

If we approve the partition, new patents or deeds will be issued to the

heirs for the portions set aside to them. If title to the allotment is

held as restricted fee, a partition may be accomplished by the heirs

executing approved deeds to the other heirs for their respective

portions.

Mortgages and Deeds of Trust To Secure Loans to Indians

Sec. 152.34 Can I mortgage my land?

stricted land.

If we approve the partition, new patents or deeds will be issued to the

heirs for the portions set aside to them. If title to the allotment is

held as restricted fee, a partition may be accomplished by the heirs

executing approved deeds to the other heirs for their respective

portions.

Mortgages and Deeds of Trust To Secure Loans to Indians

Sec. 152.34 Can I mortgage my land?

Yes. With the Secretary's approval, you may execute a mortgage or

deed of trust to your land. The Secretary will secure appraisal

information prior to approval of the mortgage or deed of trust. Such

lands will be subject to foreclosure or sale, according to the terms of

the mortgage or deed of trust, and in accordance with the laws of the

State in which the lands are located. For the purpose of foreclosure or

sale proceedings under this section, you will be regarded as vested

with unrestricted fee simple title to the lands (Act of March 29, 1956)

(70 Stat. 62; 25 U.S.C. 483a).

Sec. 152.35 Can I make a sale on a deferred payment plan?

Yes, when you and purchaser desire. The terms will be set out in a

memorandum of sale which constitutes a contract for payment in full and

delivery of title. The executed deed will be held by the superintendent

to be delivered only upon full compliance with the terms of sale.

Request for fee patent will be made only upon full compliance with the

terms of the sale. As required by the Act of June 25, 1910 (36 Stat.

855), as amended (25 U.S.C. 372); the terms of the sale will require

the purchaser to pay not less than 10 percent of the purchase price in

advance. Terms for the payment of the remaining installment, plus

interest, must be acceptable to the Secretary and the Indian owner. If

the purchaser defaults on any deferred payment plan in the first or

subsequent payments, all payments, including interest, previously made

will be forfeited to the Indian owner.

Denials of Applications

Sec. 152.36 When does the Secretary deny approval of my application?

s for the payment of the remaining installment, plus

interest, must be acceptable to the Secretary and the Indian owner. If

the purchaser defaults on any deferred payment plan in the first or

subsequent payments, all payments, including interest, previously made

will be forfeited to the Indian owner.

Denials of Applications

Sec. 152.36 When does the Secretary deny approval of my application?

The Secretary denies any request under this part if a determination

shows that it will adversely affect the best interest of other Indians,

or the tribe.

Sec. 152.37 Am I notified of a denial?

Yes, the Secretary makes denials in a written letter. You have the

right to appeal the decision under part 2 of this chapter.

Receiving Information

Sec. 152.38 Who receives information regarding status of applications

for patents in fee, certificates of competency, or orders removing

restrictions of trust or restricted Indian lands?

(a) The status of applications by Indians for patents in fee,

certificates of competency, or orders removing restrictions must be

disclosed to:

(1) Employees of the Department of the Interior whose duties

require that the information be disclosed to them;

(2) The applicant or his attorney, upon request;

(3) Members of Congress on behalf of the applicant; and

(4) Owners of trust or restricted land whose property would be

affected by the termination of trust or restricted status of the land

covered by the application.

disclosed to:

(1) Employees of the Department of the Interior whose duties

require that the information be disclosed to them;

(2) The applicant or his attorney, upon request;

(3) Members of Congress on behalf of the applicant; and

(4) Owners of trust or restricted land whose property would be

affected by the termination of trust or restricted status of the land

covered by the application.

(b) All other persons, upon request and only after a patent in fee,

certificate of competency, or an order removing restrictions has been

issued, according to the following timeframes:

(1) 15 days after the fee patent has been issued by the Bureau of

Land Management;

(2) 15 days after issuance of a certificate of competency or order

removing restrictions; or

(3) After the application has been rejected, and you have been

notified.

Dated: June 10, 1996.

Ada E. Deer,

Assistant Secretary--Indian Affairs.

[FR Doc. 96-16037 Filed 7-1-96; 8:45 am]

BILLING CODE 4310-02-M