[Federal Register Volume 64, Number 38 (Friday, February 26, 1999)]
[Notices]
[Pages 9520-9521]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-4791]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
Reopening Certain Escheated Estates
AGENCY: Office of the Secretary, Interior.
ACTION: Notice.
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SUMMARY: The Secretary of the Interior is granting a petition filed by
the Deputy Commissioner of Indian Affairs with the Office of Hearings
and Appeals (OHA) to reopen estates in which property escheated to an
Indian tribe under the escheat provision of the Indian Land
Consolidation Act. The petition is granted to give full effect to the
1997 decision of the U.S. Supreme Court in Babbitt v. Youpee, 519 U.S.
234 (1997), which found the escheat provision unconstitutional, and to
prevent manifest injustice.
EFFECTIVE DATE: February 19, 1999.
FOR FURTHER INFORMATION CONTACT: Robert L. Baum, Director, Office of
Hearings and Appeals, United States Department of the Interior, 4015
Wilson Boulevard, Mail Stop 1103 BT-3, Arlington, Virginia 22203;
telephone: (703) 235-3810.
SUPPLEMENTARY INFORMATION:
Background
The U.S. Supreme Court issued a decision in Babbitt v. Youpee, 519
U.S. 234 (1997), holding that the escheat provision of the Indian Land
Consolidation Act, 25 U.S.C. 2206(a), was unconstitutional. The Deputy
Commissioner for Indian Affairs filed a Petition for Reopening All
Estates in Which Property Escheated to an Indian Tribe Pursuant to 25
U.S.C. 2206 (the Petition) with the OHA.
On October 2, 1998, the Secretary of the Interior assumed
jurisdiction over the Petition pursuant to 43 CFR 4.5(a), and issued a
proposed order reopening the escheated estates in question. The
proposed reopening of the estates gave the Department of the Interior
(Department) the opportunity to redistribute the escheated interests to
the rightful distributees without regard to the unconstitutional
provision. The proposed order provided that all prior Departmental
probate determinations wherein land interests were ordered escheated to
Indian tribes under 25 U.S.C. 2206 would be reopened and modified ``to
the extent that the appropriate Bureau of Indian Affairs official
having jurisdiction over the affected land titles shall distribute any
such escheated interests to the rightful heirs and beneficiaries
without regard to the provisions of 25 U.S.C. 2206, except that prior
determinations where an Indian tribe has paid fair market value for any
escheated interest under 25 U.S.C. 2206 will not be reopened or
modified.'' Recognizing that some cases would fall outside the
parameters of the proposed order, the Secretary delegated authority to
the Department's Administrative Law Judges to adjudicate such cases on
an ad hoc basis pursuant to existing law.
On October 7, 1998, the Office of the Secretary published a
``Notice of the Secretary's Assumption of Jurisdiction Over Probate of
Estates in Which Property Escheated to an Indian Tribe Pursuant to 25
U.S.C. 2206 and Opportunity to Comment'' in the Federal Register. The
Notice gave interested parties until November 2, 1998, to submit
comments to the Director of OHA.
Discussion of Interested Party Comments
The OHA Director received seven timely comments in response to the
published Notice. One additional comment was received after November 2,
1998. None of the comments received objected to the proposed reopening
of the escheated estates or suggested any changes to the language in
the Secretary's proposed order. The comments are summarized below and
responses follow.
Comment: Four comments expressed concern about the administrative
burdens and costs associated with the complicated task of reopening the
case, and suggested that the tribes should not bear the burden and
expense of correcting a problem they did not create.
Response: The Department expects that the Bureau of Indian Affairs
(BIA) will bear the majority of administrative burdens and costs
associated with the reopening of these estates. Direct cost to the
tribes should be minimal. The Department will request a supplemental
appropriation for the costs incurred by the BIA in reopening the
estates.
Comment: Four comments suggested that no tribe should be held
liable for reimbursing lease income and interest that BIA sent the
tribe from the escheated interests.
Response: The heirs and beneficiaries are entitled to the money
that they lost while the tribes held their interests under the escheat
provision. The Supreme Court's decision makes it clear that the tribes
were not entitled to that money. Furthermore, many tribes escrowed this
money in anticipation of a reopening of the escheated estates.
Comment: One Tribe requested that the option of government purchase
of escheated interests on the Quinault Reservation not be considered.
Response: This comment is outside the scope of the current issue
and does not affect this decision.
Comment: One Tribe suggested that Congress should appropriate funds
for the process of reopening the estates as well as for the tribes to
buy the fractionated interests from any heirs who may not want to keep
their interest, but seek a fair market value for them.
Response: The Department will be requesting supplemental
appropriations for costs incurred by the BIA in reopening the escheated
interests. Congress has provided a $5 million appropriation for a pilot
project to enable tribes to purchase fractional interests from willing
sellers. However, there is no program at present that would apply
nationally.
Comment: One Tribe commented that it was incorrectly listed in the
Federal Register Notice of October 7, 1998, as the ``Stockbridge-Munsee
Community of Minnesota'' and their correct name is the ``Stockbridge-
Munsee Community of Wisconsin.'' The Tribe also said it had no record
of land escheating to it under 25 U.S.C. 2206, and asked to be told if
the BIA or the Department is aware of any property that escheated to
this Tribe under Act.
Response: BIA is looking into this matter and will advise the
Tribe.
Comment: One Tribe expressed concerns about time delays or
reallocation of resources affecting ongoing fee-to-trust conveyances by
tribal governments or tribal members, and funding to participate in the
Indian Land Consolidation Project proposed by BIA. The Tribe has
applied to participate in this pilot project and seeks funding at the
earliest possible date for tribes with escheated lands that have
already applied for the pilot to carry out their proposed projects.
Response: This comment is outside the scope of the current issue
and does not affect this decision.
Department's Determination
The Secretary of the Interior has determined the following:
1. The Supreme Court of the United States has found the escheat
provision
[[Page 9521]]
of the Indian Land Consolidation Act to be unconstitutional.
2. Reopening all estates in which property escheated to an Indian
tribe under the escheat provision of the Indian Land Consolidation Act:
a. Allows correction of the prior distribution of assets;
b. Is in the public interest;
c. Furthers the Department's trust responsibility; and
d. Prevents manifest injustice.
3. For the reasons given above, all estates in which property
escheated to an Indian tribe under the escheat provision of the Indian
Land Consolidation Act are reopened. The Secretary will distribute
interests in these estates to the rightful distributees in accordance
with Babbitt v. Youpee, 519 U.S. 234 (1997).
4. The Bureau of Indian Affairs will bear the majority of
administrative costs associated with this action.
5. The Department will ask Congress for a supplemental
appropriation for this project.
Text of the Secretary's Order
The text of the Order signed by the Secretary on February 19, 1999,
reads as follows:
United States Department of the Interior
Office of the Secretary, Washington, D.C. 20240
In the matter of all estates in which property escheated to an
Indian Tribe pursuant to 25 U.S.C. 2206.
Order
On January 21, 1997, the United States Supreme Court issued a
decision in Babbitt v. Youpee, 519 U.S. 234 (1997), in which it
essentially held that the ``escheat provision'' of the Indian Land
Consolidation Act, 25 U.S.C. 2206, as amended, is unconstitutional. On
October 2, 1998, the Deputy Commissioner for Indian Affairs filed a
Petition for Reopening All Estates in Which Property Escheated to an
Indian Tribe Pursuant to 25 U.S.C. 2206 (the ``Petition'') with the
Office of Hearings and Appeals. By Order the same day, I took
jurisdiction of the Petition and solicited comments on it and a
Proposed Order for Reopening Escheated Estates. Both the Petition and
Proposed Order were served upon the affected tribes.
To give full effect to the Supreme Court's holding in Youpee and to
further the Department of the Interior's trust responsibility to the
Indian people, I find that the public interest would be furthered by
applying the Youpee decision retroactively to prior Departmental
probate determinations consistent with the procedures set forth more
fully below. I further determine that reopening these estates will
prevent manifest injustice and that a reasonable possibility exists for
correction of prior distribution of assets which occurred in reliance
on the unconstitutional statute.
In furtherance of my Order dated October 2, 1998 in which I assumed
jurisdiction to decide the Petition pursuant to 43 CFR Sec. 4.5(a), and
further by virtue of the power and authority vested in me by Section 1
of the Act of June 25, 1910, as amended, 25 U.S.C. 372 (1970), and
other applicable statutes, it is hereby ordered:
The Petition for Reopening All Estates in Which Property Escheated
to an Indian Tribe Pursuant to 25 U.S.C. 2206 is hereby granted. All
prior Departmental probate determinations wherein land interests were
Ordered to be escheated to Indian tribes pursuant to 25 U.S.C. 2206 are
hereby reopened. The determinations made therein are modified to the
extent that the appropriate Bureau of Indian Affairs official having
jurisdiction over the affected land titles shall distribute any such
escheated interests to the rightful heirs and beneficiaries without
regard to the provisions of 25 U.S.C. 2206, except that prior
determinations where an Indian tribe has paid fair market value for any
escheated interest under 25 U.S.C. 2206 will not be reopened or
modified.
It is recognized that there will be cases that do not fall within
the parameters of this Order and which will need to be treated on an ad
hoc basis, such as cases where there was no determination of heirs,
cases of will construction, and any other type of miscellaneous case
where Bureau of Indian Affairs personnel are uncertain as to how to
proceed. The Bureau of Indian Affairs shall refer such cases to the
respective Administrative Law Judge for adjudication. To the extent not
already delegated, I hereby delegate authority to the Administrative
Law Judges to assume jurisdiction over, and enter determinations in,
those cases pursuant to existing law.
The Director, Office of Hearings and Appeals, or his delegate will
have jurisdiction to decide any objection to the implementation of this
Order. Any objection to implementation of this Order shall be made in
writing to: Director, Office of Hearings and Appeals, U.S. Department
of the Interior, 4015 Wilson Boulevard, Room 1111/BT-3, Arlington, VA
22203.
Dated the 19th day of February, 1999.
Bruce Babbitt,
Secretary of the Interior.
Edward B. Cohen,
Deputy Solicitor.
[FR Doc. 99-4791 Filed 2-25-99; 8:45 am]
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