[Federal Register Volume 70, Number 45 (Wednesday, March 9, 2005)]
[Rules and Regulations]
[Pages 11804-11826]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-4291]



[[Page 11803]]

-----------------------------------------------------------------------

Part IV





Department of the Interior





-----------------------------------------------------------------------



Bureau of Indian Affairs



Office of the Secretary



-----------------------------------------------------------------------



25 CFR Part 15; 43 CFR Part 4



Probate of Indian Trust Estates; Final Rule

  Federal Register / Vol. 70, No. 45 / Wednesday, March 9, 2005 / Rules 
and Regulations  

[[Page 11804]]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 15

Office of the Secretary

43 CFR Part 4

RIN 1094-AA50


Probate of Indian Trust Estates

AGENCY: Bureau of Indian Affairs; Office of the Secretary, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Bureau of Indian Affairs (BIA) and the Office of Hearings 
and Appeals (OHA), Department of the Interior (the Department), are 
revising their regulations dealing with the probate of Indian trust 
estates to reflect an organizational change. The Department is 
consolidating the probate adjudication functions previously handled by 
attorney decision makers in BIA and by administrative law judges and 
Indian probate judges in OHA into a new Probate Hearings Division 
within OHA. As a result, this rule transfers various regulatory 
provisions dealing with attorney decision makers from BIA's regulations 
to OHA's.

DATES: Effective Date: March 9, 2005.

FOR FURTHER INFORMATION CONTACT: Robert S. More, Director, Office of 
Hearings and Appeals, U.S. Department of the Interior, 801 N. Quincy 
Street, Suite 300, Arlington, VA 22203, 703-235-3810.

SUPPLEMENTARY INFORMATION:

I. Background

    In 2001, BIA and OHA published final rules making numerous changes 
to the Department's procedures for processing and adjudicating Indian 
probate cases. BIA published a new 25 CFR part 15 in January, 66 FR 
7089 (Jan. 22, 2001), and OHA made conforming changes to its 
regulations in 43 CFR part 4, subpart D, in June and December, 66 FR 
32888 (June 18, 2001), 67656 (Dec. 31, 2001). Among the most 
significant of the various changes was the creation of the position of 
attorney decision maker in BIA to handle probate cases that do not 
require an evidentiary hearing.
    Under the 2001 BIA regulations, once a probate case had been 
prepared for adjudication, a probate specialist would review the case 
and, applying criteria set forth in the regulations, determine whether 
the case should be referred to an attorney decision maker in BIA or an 
administrative law judge (ALJ) or Indian probate judge in OHA. The 
probable heirs and beneficiaries were notified of the probate 
specialist's determination, and if the case was deemed appropriate for 
an attorney decision maker, they were given an opportunity to request a 
formal hearing before an ALJ or Indian probate judge. Over the last 4 
years, thousands of Indian probate cases have been decided by attorney 
decision makers in BIA, and thousands more by ALJs and Indian probate 
judges in OHA.
    Beginning in 2002, the Department has worked diligently to redesign 
its business processes to build a highly effective fiduciary trust 
services organization. The ``To-Be'' model of that organization--now 
known as the Fiduciary Trust Model--is the outcome of a 3-year effort 
guided by the Department's Comprehensive Trust Management Plan.
    The redesign covered eight trust business process areas, including 
probate, that were identified for study and reengineering. By early 
2003, the Department had detailed the existing (``As-Is'') process for 
each area and set about developing recommendations for an improved 
(``To-Be'') process. In the probate area, the chief recommendations to 
emerge from the ``To-Be'' Trust Business Model were to consolidate in a 
single organization the probate adjudication functions being handled 
separately by BIA and OHA deciding officials, and to give the attorney 
decision makers additional authority to adjudicate Indian probates.
    Consolidation was seen as leading to increased efficiency, improved 
service to beneficiaries, and greater consistency in probate decisions. 
And extending the authority of the attorney decision makers was seen as 
leading to greater flexibility in their use as deciding officials.
    During the last quarter of 2003 and the first quarter of 2004, the 
Department held a series of consultation sessions with tribes and other 
stakeholders around the country regarding the ``To-Be'' Trust Business 
Model recommendations. The tribes' general reaction to the 
recommendations concerning probate adjudication was favorable.
    In August 2004, the Department approved the consolidation 
recommendation and assigned the consolidated organization to OHA. The 
recommendation to extend the authority of the attorney decision makers 
was referred to OHA to evaluate following the consolidation, with a 
goal of making the best use of all the available adjudicatory 
resources.
    Consequently, OHA has created a Probate Hearings Division to bring 
together the attorney decision makers and their support staff from BIA 
and the probate ALJs, Indian probate judges, attorneys, and their 
support staff from OHA.
    This rule is critical to the initial implementation of the 
Fiduciary Trust Model recommendations regarding probate. With the 
transfer of the attorney decision makers from BIA to OHA, the 
regulatory provisions governing their authority and procedures must 
likewise be transferred from BIA's regulations in 25 CFR part 15 to 
OHA's regulations in 43 CFR part 4, subpart D. Other minor changes to 
BIA's and OHA's procedures are being made as well, as described below.
    While these minor procedural and editorial changes do not require 
public notice and comment, OHA recognizes that more substantial changes 
to its probate regulations will be necessary to fully implement both 
the Fiduciary Trust Model and the newly enacted American Indian Probate 
Reform Act of 2004, Pub. L. 108-374. OHA therefore anticipates engaging 
in notice-and-comment rulemaking in 2005 to address a number of issues 
that are beyond the scope of this rule.

II. Section-by-Section Analysis

A. 25 CFR Part 15

    As noted in the Summary above, this rule transfers various 
regulatory provisions dealing with attorney decision makers from BIA's 
regulations in 25 CFR part 15 to OHA's regulations in 43 CFR part 4. 
These changes result in a partial restructuring of the part 15 
regulations. Sections 15.1 through 15.108 and 15.201 retain their 
current numbering and content, although the language has been 
simplified, and other minor textual changes have been made in places as 
noted below. But the remainder of part 15 has been restructured. The 
following table lists the affected sections from the 2001 version of 
part 15 and their corresponding provisions in the revised regulations 
(if any).

------------------------------------------------------------------------
                 2001 rule                            This rule
------------------------------------------------------------------------
25 CFR 15.109.............................  43 CFR 4.208.
25 CFR 15.202.............................  25 CFR 15.203.
25 CFR 15.203.............................  25 CFR 15.301; 43 CFR 4.211.
25 CFR 15.204.............................  43 CFR 4.202.
25 CFR 15.205.............................  43 CFR 4.202.
25 CFR 15.206.............................  43 CFR 4.212.
25 CFR 15.301.............................  43 CFR 4.213.
25 CFR 15.302.............................  (None).
25 CFR 15.303.............................  25 CFR 15.202.
25 CFR 15.304.............................  43 CFR 4.250.
25 CFR 15.305.............................  43 CFR 4.251.
25 CFR 15.306.............................  43 CFR 4.251.
25 CFR 15.307.............................  43 CFR 4.251.
25 CFR 15.308.............................  43 CFR 4.251.

[[Page 11805]]

 
25 CFR 15.309.............................  43 CFR 4.251.
25 CFR 15.310.............................  43 CFR 4.213.
25 CFR 15.311.............................  43 CFR 4.214.
25 CFR 15.312.............................  25 CFR 15.303.
25 CFR 15.401.............................  43 CFR 4.215.
25 CFR 15.402.............................  43 CFR 4.215.
25 CFR 15.403.............................  43 CFR 4.215.
25 CFR 15.404.............................  43 CFR 4.215.
25 CFR 15.405.............................  43 CFR 4.215.
25 CFR 15.501.............................  25 CFR 15.401.
25 CFR 15.502.............................  25 CFR 15.401.
25 CFR 15.503.............................  25 CFR 15.402.
25 CFR 15.504.............................  25 CFR 15.403.
------------------------------------------------------------------------

    As the table indicates, section 15.302 from the 2001 rule has been 
removed. It stated that, ``Unless otherwise provided by federal law or 
a tribal inheritance code approved by the Secretary, the law of the 
state where the decedent was domiciled will determine the distribution 
of the estate.'' This regulation had proved unhelpful in practice and 
potentially misleading since, in the majority of cases, federal law 
``otherwise provided.''
    Where trust lands are involved, intestate succession has generally 
been determined by the law of the state where such lands are located 
(see 25 U.S.C. 348), which is not necessarily where the decedent was 
domiciled. In some instances, tribal probate codes govern. Moreover, 
state law does not determine the distribution of estates in testate 
cases; federal law does. E.g., Estate of Reuben Mesteth, 16 IBIA 148 
(1988). ``[T]he law of the state where the decedent was domiciled'' has 
generally governed the distribution of trust personal property in 
intestate cases, but even that rule will change under the new American 
Indian Probate Reform Act of 2004, which contains a federal intestate 
succession code.
    The paragraphs below describe other changes from the 2001 rule, 
following the numbering scheme used in this new rule.
Section 15.2 What Terms Do I Need To Know?
    The definition of ``deciding official'' has been changed to include 
only the Departmental officials who have been given the authority to 
decide Indian probate matters. At the time of the 2001 rule, various 
BIA officials could handle summary cases, including a regional 
director, agency superintendent, field representative, or attorney 
decision maker. Shortly thereafter, BIA assigned this responsibility to 
its attorney decision makers exclusively. Now that the attorney 
decision makers are joining the ALJs and Indian probate judges in OHA, 
the term ``deciding official'' has been defined to mean only those 
officials.
    The definitions of ``ALJ'' and ``attorney decision maker'' have 
been revised and a definition of ``Indian probate judge'' has been 
added to more clearly distinguish the three types of deciding 
officials. ALJs and Indian probate judges have the same authority to 
conduct formal probate hearings and render probate decisions, but their 
positions are governed by different provisions of Title 5, U.S. Code. 
Attorney decision makers are authorized to conduct informal probate 
hearings and render probate decisions in cases that do not require a 
formal hearing.
    Definitions have been added for ``formal hearing'' and ``informal 
hearing'' to further clarify the roles of the three deciding officials.
    Other minor changes have been made to a few of the definitions in 
this section. For example, a sentence has been added to the definition 
of ``beneficiary'' to clarify that it includes both a devisee (someone 
who receives real property in a will) and a legatee (someone who 
receives personal property in a will). And the term ``codicil'' is now 
a separately defined term, rather than being included in the definition 
of ``will'' as in the 2001 rule. Because the Office of Trust Funds 
Management no longer exists as a separate entity within the Office of 
the Special Trustee, the definition of ``OTFM'' has been replaced with 
a definition of ``OST.''
Section 15.4 How Does the Probate Process Work?
    Under the 2001 rule, BIA prepared the probate package in each case 
and then determined whether the case should be referred to a deciding 
official in BIA or a deciding official in OHA for further processing. 
With the consolidation of the deciding officials in OHA, BIA will now 
refer all completed probate packages to OHA, and OHA will make the case 
assignments. Paragraph (c) has been revised to reflect this change.
Section 15.101 How Do I Begin the Probate Process?
    This section has been revised to conform to existing practice and 
simplify the requirements for initiating the probate process. Under 
both the 2001 rule and this rule, a person who wants BIA to initiate a 
probate process must provide a certified copy of the death certificate 
if one exists. If a death certificate does not exist, the 2001 rule 
required some other evidence of the death, such as a newspaper obituary 
notice or a church or court record, with a supporting affidavit from 
the tribe with whom the decedent was associated or someone who knows 
about the decedent's death.
    In practice, BIA and OHA found that, if a death certificate does 
not exist, other documentary evidence of the death is often lacking as 
well. In such cases, an affidavit from someone who knows of the death 
has been accepted. The revised regulation adopts this approach by 
requiring an affidavit where there is no death certificate. Any 
supporting documentation should be provided if it is available, but it 
is not essential to initiating the probate process.
Section 15.203 What Must the Complete Probate Package Contain?
    Paragraph (b) has been revised to specify that BIA will provide the 
enrollment or other identifying number for each prospective heir or 
beneficiary, if such number has been assigned. BIA provides this 
information in most instances already, but the requirement has been 
added to the regulations because of the important role these numbers 
play in correctly identifying interested parties and in processing the 
probate.
Section 15.301 What Happens After BIA Prepares the Probate Package?
    This section, renumbered from former section 15.203, has been 
revised to reflect the change discussed above in connection with 
section 15.4. The assignment of a probate case to an attorney decision 
maker for an informal hearing or to an ALJ or Indian probate judge for 
a formal hearing will be made by OHA, not by the probate specialist. 
However, the probate specialist will continue to provide interested 
parties with the notice described in former section 15.203(c), (e), 
including notice of the right of the probable heirs or beneficiaries to 
request a formal hearing.
Section 15.302 What Happens After the Probate Package Is Referred to 
OHA?
    This section is new. It states that, after OHA receives the probate 
package from BIA, it will assign the case to a deciding official for 
further proceedings in accordance with 43 CFR part 4.
Section 15.303 What Happens After the Probate Decision Is Made?
    This section is renumbered from former section 15.312 and 
incorporates provisions from former section 15.404 as well as from 
former 43 CFR 4.241(a). The references to ``appeal'' in former sections 
15.312 and 15.404 have been expanded to include a request for de novo 
review following an attorney decision maker's decision under 43 CFR 
4.215, a request for rehearing under 43

[[Page 11806]]

CFR 4.241, or an appeal under 43 CFR 4.320 et seq.
    Under former section 15.401 et seq., a request for review following 
an attorney decision maker's decision was termed an ``appeal,'' but 
that was arguably a misnomer, since the review by an ALJ or Indian 
probate judge was de novo. This rule uses the term ``request for de 
novo review'' to distinguish this review process from an appeal that 
can be taken from certain decisions by an ALJ or Indian probate judge 
to the Interior Board of Indian Appeals.

B. 43 CFR Part 4

    Transfer of the regulatory provisions dealing with attorney 
decision makers from BIA's regulations in 25 CFR part 15 to OHA's 
regulations in 43 CFR part 4 requires minimal restructuring of the part 
4, subpart D regulations. Sections 4.200 through 4.210, 4.220 through 
4.242, and 4.250 through 4.357 retain their current numbering and 
content, although the language has been simplified, several sections 
have been divided (or further divided) into paragraphs and 
subparagraphs for ease of reference, and as noted below, other minor 
textual changes have been made in places. The following table lists the 
sections from the 2001 version of part 4 that are affected by the 
restructuring and their corresponding provisions in the revised 
regulations.

------------------------------------------------------------------------
                 2001 rule                            This rule
------------------------------------------------------------------------
43 CFR 4.211..............................  43 CFR 4.216.
43 CFR 4.212..............................  43 CFR 4.217.
43 CFR 4.243..............................  43 CFR 4.215.
------------------------------------------------------------------------

    This rule incorporates new sections 4.211 through 4.215, based on 
corresponding provisions from 25 CFR part 15, as described below. The 
paragraphs below describe other changes from the 2001 rule, following 
the numbering scheme used in this new rule. OHA is also changing one 
portion of its general rules in 43 CFR part 4, subpart B, as explained 
in the following paragraph.
Section 4.27 Standards of Conduct
    Paragraph (c) of this section deals with the disqualification of an 
administrative law judge or appeals board member. The paragraph has 
been revised to cover all OHA deciding officials, including attorney 
decision makers and Indian probate judges.
Section 4.200 Scope of Regulations
    This section has been converted to a table for ease of reference, 
and the provisions in paragraphs (a)(2)(i) through (iii) have been 
added to clarify which portions of the part 4, subpart D regulations 
apply to different types of probate proceedings. Paragraph (a)(5) has 
been added to cover proceedings under the White Earth Reservation Land 
Settlement Act.
Section 4.201 Definitions
    A number of definitions have been revised or added to make this 
section consistent with 25 CFR 15.2. See the discussion above regarding 
``administrative law judge'' (``ALJ'' in section 15.2), ``attorney 
decision maker,'' ``beneficiary,'' ``codicil,'' ``formal hearing,'' 
``Indian probate judge,'' and ``informal hearing.'' Other conforming 
changes include the addition of definitions for ``LTRO,'' ``OHA,'' and 
``decision or order,'' and replacing the term ``party in interest'' 
with ``interested party.''
    A definition of ``de novo review'' has been added to go with the 
new section 4.215 (see discussion above under section 15.303). 
Definitions have also been added for a few other terms used in part 4, 
subpart D: ``bequeath,'' ``bequest,'' and ``devise.''
Section 4.202 General Authority of Deciding Officials
    This revised section is a combination of former 43 CFR 4.202, which 
dealt with the authority of ALJs and Indian probate judges, and former 
25 CFR 15.204-.205, which set forth criteria for cases that could not 
be handled by an attorney decision maker. Paragraph (a) provides that 
an attorney decision maker may conduct an informal hearing and render a 
decision in any probate case that does not require a formal hearing and 
a decision by an ALJ or Indian probate judge. Paragraph (b) then sets 
forth the criteria for cases that require a formal hearing and a 
decision by an ALJ or Indian probate judge.
    One criterion from former section 15.205 has been omitted in new 
section 4.202(b). Under former sections 15.109 and 15.205(c)(8), a 
disclaimer from a non-Indian probable heir or beneficiary could be 
accepted by any deciding official, while a disclaimer from an Indian 
probable heir or beneficiary could be accepted only by an ALJ or Indian 
probate judge. There does not appear to be any basis for this 
distinction, which has caused numerous practical problems for 
interested parties and deciding officials. There is also no need for 
the distinction, since under section 4.202(b)(1) a probable heir or 
beneficiary can request a formal hearing before an ALJ or Indian 
probate judge if he or she prefers.
    Two new criteria have been added to section 4.202(b) to cover 
issues that are handled only by ALJs and Indian probate judges: 
determinations of nationality, citizenship, or status affecting the 
character of land titles under section 4.206(a)(2), and tribal 
purchases of a decedent's interest under section 4.300 et seq.
Section 4.206 Determinations of Nationality or Citizenship and Status 
Affecting Character of Land Titles
    This section has been divided into paragraphs to distinguish 
determinations of Indian or non-Indian status from determinations of 
nationality or citizenship. Determinations of Indian or non-Indian 
status can be made by any deciding official, including an attorney 
decision maker, see former 25 CFR 15.311(4). Determinations of 
nationality or citizenship affecting the character of land titles, 
however, are more likely to turn on factual issues requiring an 
evidentiary hearing. Such cases have therefore been handled by an ALJ 
or Indian probate judge.
Section 4.211 Assignment to Deciding Official
    This section is based on former 25 CFR 15.203; a table has been 
used for ease of reference. As noted previously, with the consolidation 
of attorney decision makers, ALJs, and Indian probate judges in OHA, 
BIA will be referring all completed probate packages to OHA, which will 
make the case assignments to particular deciding officials. Consistent 
with current practice, the cases will be divided into three categories: 
(a) Those that qualify for summary processing, (b) those that do not 
qualify for summary processing but do not require a formal hearing, and 
(c) those that require a formal hearing. Cases that fall into either of 
the first two categories will be assigned to an attorney decision 
maker, while cases that fall into the third category will be assigned 
to an ALJ or Indian probate judge.
    Paragraph (d) has been added to provide flexibility in the event an 
attorney decision maker is not available to handle a case falling into 
either of the first two categories. In such event, the case could be 
assigned to an ALJ or Indian probate judge.
    Section 4.212 Summary Process for Estate Containing Only Cash 
Assets of Less Than $5,000
    This section is based on former 25 CFR 15.206. It provides for an 
expedited, informal process for estates that contain only trust cash 
assets of less than $5,000 and that do not require a formal hearing 
under section 4.202(b).

[[Page 11807]]

Section 4.213 Informal Process for Cases That Do Not Require a Formal 
Hearing
    This section is based on former 25 CFR 15.301. It provides for an 
informal process for estates that contain trust cash assets of $5,000 
of more or other trust property and that do not require a formal 
hearing under section 4.202(b).
Section 4.214 Written Decision of Attorney Decision Maker
    This section is based on former 25 CFR 15.311. It specifies what 
the written decision of an attorney decision maker must contain, 
following an informal hearing held under section 4.212 or 4.213.
Section 4.215 De Novo Review Following Decision of Attorney Decision 
Maker
    This section is based on former 25 CFR 15.401-.405 and former 43 
CFR 4.243. As noted previously in connection with 25 CFR 15.303, this 
rule uses the term ``request for de novo review'' rather than 
``appeal'' (as in the former regulations) to refer to a proceeding by 
an ALJ or Indian probate judge to review a probate case following the 
issuance of an attorney decision maker's decision under section 4.214.
Section 4.300 Authority and Scope
    Paragraph (a) of this section has been converted to a table for 
ease of reference.

III. Procedural Requirements

A. Determination To Issue Direct Final Rule

    The Department has determined that the public notice and comment 
provisions of the Administrative Procedure Act, 5 U.S.C. 553(b), do not 
apply to this rulemaking because the revisions being adopted pertain 
solely to matters of agency organization, procedure, and practice. They 
therefore satisfy the exemption from notice and comment rulemaking in 5 
U.S.C. 553(b)(A). This rule merely transfers regulatory provisions 
governing the processing of certain Indian probate cases from 25 CFR 
part 15 to 43 CFR part 4, to reflect the consolidation of Indian 
probate adjudication in OHA, and makes other minor changes to the 
Department's procedural regulations to assure consistency and 
efficiency in adjudications after the consolidation.

B. Determination To Make Rule Immediately Effective

    The Department has determined that there is good cause to waive the 
requirement of publication 30 days in advance of the rule's effective 
date under 5 U.S.C. 553(d). Consolidating the Indian probate 
adjudication function in one organization will lead to increased 
efficiency, improved service to Indian heirs and beneficiaries, and 
greater consistency in probate decisions. Delaying the consolidation 
for 30 days until the rule became effective would hamper the 
administrative process while providing no benefit to the public. And 
implementing the consolidation while waiting for the rule to become 
effective in 30 days would result in a regulatory gap during which the 
attorney decision makers, having been transferred to OHA, would have no 
authority to process their cases. Accordingly, this rule is being made 
effective on the date of publication in the Federal Register for good 
cause shown under 5 U.S.C. 553(d)(3).

C. Review under Executive Order 12866 (Regulatory Planning and Review)

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Department must determine whether a regulatory action is 
``significant'' and therefore subject to OMB review and the 
requirements of the Executive Order. The Order defines a ``significant 
regulatory action'' as one that is likely to result in a rule that may 
(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 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.
    This rule merely transfers regulatory provisions governing the 
processing of certain Indian probate cases from 25 CFR part 15 to 43 
CFR part 4, to reflect the consolidation of Indian probate adjudication 
in OHA, and makes other minor changes to the Department's procedural 
regulations. Accordingly, it has been determined that this rule is not 
a ``significant regulatory action'' from an economic standpoint and 
that it does not otherwise create any inconsistencies or budgetary 
impacts on any other agency or federal program.

D. Review Under Executive Order 12988 (Civil Justice Reform)

    With respect to both the review of existing regulations and the 
promulgation of new regulations, subsection 3(a) of Executive Order 
12988, ``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes 
on Executive agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction.
    With regard to the review of new regulations, subsection 3(b) of 
Executive Order 12988 specifically requires that Executive agencies 
make every reasonable effort to ensure that the regulations (1) clearly 
specify the preemptive effect, if any; (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 affecting 
clarity and general draftsmanship under any guidelines issued by the 
Attorney General.
    Subsection 3(c) of Executive Order 12988 requires agencies to 
review new regulations in light of applicable standards in section 3(a) 
and section 3(b) to determine whether they are met or it is 
unreasonable to meet one or more of them. The Office of the Solicitor 
has determined that this rule meets the relevant standards of Executive 
Order 12988.

E. Review Under the Regulatory Flexibility Act

    This rule was also reviewed under the Regulatory Flexibility Act, 5 
U.S.C. 601 et seq., which requires preparation of a regulatory 
flexibility analysis for any rule which is likely to have significant 
economic impact on a substantial number of small entities.
    This rule merely transfers regulatory provisions governing the 
processing of certain Indian probate cases from 25 CFR part 15 to 43 
CFR part 4, to reflect the consolidation of Indian probate adjudication 
in OHA, and makes other minor changes to the Department's procedural 
regulations. Accordingly, the Department has determined that this rule 
will not have a significant economic impact on a substantial number of 
small entities, and no

[[Page 11808]]

regulatory flexibility analysis is required.

F. Review Under the Small Business Regulatory Enforcement Fairness Act 
of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996:
    (1) It will not have an annual effect on the economy of $100 
million or more. The rule reflects the consolidation of existing 
probate adjudication functions in a single organization, which will 
increase administrative efficiency but will not affect the overall 
economy.
    (2) This rule will not result in a major increase in costs or 
prices for consumers, individual industries, Federal, State, or local 
government agencies, or geographic regions. The transfer of regulatory 
provisions governing the processing of certain Indian probate cases 
from 25 CFR part 15 to 43 CFR part 4 and the other minor procedural 
changes made by the rule will not result in any increase in costs or 
prices.
    (3) This rule will not result in any significant adverse effects on 
competition, employment, investment, productivity, or innovation, nor 
on the ability of United States-based companies to compete with 
foreign-based companies in domestic and export markets. The rule is 
limited to matters of agency organization, procedure, and practice.

G. Review Under the Paperwork Reduction Act

    This rule is exempt from the requirements of the Paperwork 
Reduction Act, since it applies to the conduct of agency administrative 
proceedings involving specific individuals and entities. 44 U.S.C. 
3518(c); 5 CFR 1320.4(a)(2). An OMB form 83-1 is not required.

H. Review Under Executive Order 13132 (Federalism)

    This rule will not have 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. While this rule may be of interest to tribes, 
there is no Federalism impact on the trust relationship or balance of 
power between the United States government and tribal governments. 
Therefore, in accordance with Executive Order 13132, the Department has 
determined that this rule will not have sufficient federalism 
implications to warrant the preparation of a Federalism Assessment.

I. Review Under the National Environmental Policy Act of 1969

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. Therefore, neither an 
Environmental Assessment nor an Environmental Impact Statement is 
necessary for this rule.

J. Review Under the Unfunded Mandates Reform Act of 1995

    This rule does not impose an unfunded mandate on State, local, and 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or tribal governments or the private sector. This rule merely 
transfers regulatory provisions governing the processing of certain 
Indian probate cases from 25 CFR part 15 to 43 CFR part 4, to reflect 
the consolidation of Indian probate adjudication in OHA, and makes 
other minor changes to the Department's procedural regulations. A 
statement containing the information required by the Unfunded Mandates 
Reform Act, 2 U.S.C. 1531 et seq., is not required.

K. Review Under Executive Order 12630 (Takings)

    In accordance with Executive Order 12630, this rule does not have 
significant takings implications. This rule does not involve the taking 
of private property interests, and no takings implication assessment 
has been prepared.

L. Review Under Executive Order 13175 (Tribal Consultation)

    During the period from November 2003 to March 2004, the Department 
held a series of consultation sessions with tribes around the country 
concerning its ``To-Be'' Trust Business Model, including the 
recommendation that all probate adjudication be consolidated in a 
single organization. The tribes were notified during the consultation 
sessions that the Department's Indian probate regulations in 25 CFR 
part 15 and 43 CFR part 4 would need to be revised to effectuate the 
consolidation. The general reaction to the recommendation, which this 
rule implements, was favorable. The Department has met its tribal 
consultation obligations under E.O. 13175.

M. Review Under Executive Order 13211 (Energy Impacts)

    The Department has determined that this rule is not a ``significant 
energy action'' as defined in Executive Order 13211 because it is not a 
significant regulatory action under Executive Order 12866 (as discussed 
above), nor is it likely to have a significant adverse effect on the 
supply, distribution, or use of energy.

List of Subjects

25 CFR Part 15

    Estates, Indians-law.

43 CFR Part 4

    Administrative practice and procedure, Estates, Hearing and appeal 
procedures, Indians-law.

    Dated: February 11, 2005.
David W. Anderson,
Assistant Secretary--Indian Affairs.

    Dated: February 17, 2005.
P. Lynn Scarlett,
Assistant Secretary--Policy, Management and Budget.

0
For the reasons set forth in the preamble, 25 CFR part 15 and 43 CFR 
part 4 are amended as follows:

TITLE 25--INDIAN AFFAIRS

PART 15--PROBATE OF INDIAN ESTATES, EXCEPT FOR MEMBERS OF THE FIVE 
CIVILIZED TRIBES

0
1. Revise part 15 of title 25 of the Code of Federal Regulations to 
read as follows:
PART 15--PROBATE OF INDIAN ESTATES, EXCEPT FOR MEMBERS OF THE FIVE 
CIVILIZED TRIBES
Subpart A--Introduction
Sec.
15.1 What is the purpose of this part?
15.2 What terms do I need to know?
15.3 Will the Secretary probate all the property in Indian estates?
15.4 How does the probate process work?
Subpart B--Starting the Probate Process
15.101 How do I begin the BIA probate process?
15.102 May I notify BIA of a death if I am not related to the 
decedent?
15.103 When should BIA be notified of a death?
15.104 What other documents does BIA need to prepare a probate 
package?
15.105 Will BIA wait to begin the probate process until it is 
notified of the decedent's death?
15.106 Can I get emergency assistance for funeral expenses from the 
decedent's IIM account?
15.107 Who prepares an Indian probate package?
15.108 If the decedent was not an enrolled member of a tribe or was 
a member of

[[Page 11809]]

more than one tribe, who prepares the package?
Subpart C--Preparing the Probate Package
15.201 What will BIA do with the documents that I provide?
15.202 If the decedent owed me money, how do I file a claim against 
the estate?
15.203 What must the complete probate package contain?
Subpart D--Probate Processing and Distributions
15.301 What happens after BIA prepares the probate package?
15.302 What happens after the probate package is referred to OHA?
15.303 What happens after the probate decision is made?
Subpart E--Information and Records
15.401 How can I find out the status of a probate?
15.402 Who owns the records associated with this part?
15.403 How must records associated with this part be preserved?

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 372-74, 410; 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; Funds of deceased Indians other than the Five 
Civilized Tribes, see Title 25 Code of Federal Regulations, Part 
115.

Subpart A--Introduction


Sec.  15.1  What is the purpose of this part?

    This part contains the procedures that the Secretary follows to 
initiate the probate of the trust estate of a deceased individual 
Indian who owned trust or restricted property. 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 BIA, and how probates 
will be sent to the OHA for disposition.


Sec.  15.2  What terms do I need to know?

    Agency means the Bureau of Indian Affairs (BIA) agency office, or 
any other designated office in BIA, having jurisdiction over trust or 
restricted property and money. This term also means any office of a 
tribe that has contracted or compacted the BIA probate function under 
25 U.S.C. 450f or 458cc.
    ALJ means an administrative law judge with the Office of Hearings 
and Appeals (OHA) appointed pursuant to the Administrative Procedure 
Act, 5 U.S.C. 3105.
    Attorney decision maker means an attorney with OHA who conducts an 
informal hearing and renders a decision in any probate case that does 
not require a formal hearing and a decision by an ALJ or Indian probate 
judge.
    Beneficiary means any individual who is designated in a decedent's 
will to receive trust or restricted property or money. The term 
includes both a devisee (someone who receives real property in a will) 
and a legatee (someone who receives personal property in a will).
    BIA means the Bureau of Indian Affairs within the Department of the 
Interior.
    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.
    Creditor means any individual or entity that submits a claim for 
payment from a decedent's estate.
    Day means a calendar day, unless otherwise stated.
    Decedent means a person who is deceased.
    Deciding official means an ALJ, Indian probate judge, or attorney 
decision maker.
    Decision or order means a written document issued by a deciding 
official making determinations as to heirs, wills, beneficiaries, and 
creditors' claims, and ordering distribution of property and money.
    Estate means the trust cash assets, restricted or trust lands, and 
other trust property owned by the decedent at the time of his or her 
death.
    Form OHA-7 means a form used by OHA (or an automated database 
equivalent) to record data for heirship and family history and to 
provide information on any wills, trust and restricted property, 
adoptions, and names and addresses of all interested parties.
    Formal hearing means a trial-type proceeding, conducted by an ALJ 
or Indian probate judge, in which evidence is obtained through the 
testimony of witnesses and the introduction of relevant documents.
    Heir means any individual who receives trust or restricted property 
or money from a decedent in an intestate proceeding.
    IIM account means funds held in an individual Indian money (IIM) 
account by the Office of the Special Trustee for American Indians (OST) 
or by a tribe performing this function under a contract or compact.
    Indian probate judge means an employee of OHA, other than an 
administrative law judge or attorney decision maker, to whom the 
Secretary has delegated authority to conduct hearings in probate cases 
in accordance with 43 CFR part 4, subpart D.
    Informal hearing means a meeting convened by an attorney decision 
maker in which interested parties are asked to present relevant 
information on uncontested issues.
    Interested party means any probable or actual heir, any beneficiary 
under a will, any party asserting a claim against a deceased Indian's 
estate, and any tribe having a statutory option to purchase the trust 
or restricted property interest of a decedent.
    Intestate means the decedent died without a valid will.
    LTRO means the Land Titles and Records Office within BIA.
    OHA means the Office of Hearings and Appeals, Department of the 
Interior.
    OST means the Office of the Special Trustee for American Indians, 
Department of the Interior.
    Probate means the legal process by which applicable tribal law, 
state law, or federal law that affects the distribution of a decedent's 
estate is applied to:
    (1) Determine the heirs;
    (2) Determine the validity of wills and determine beneficiaries;
    (3) Determine whether claims against the estate will be paid from 
trust funds; and
    (4) Transfer any funds or property held in trust by the Secretary 
for a decedent, or any restricted property of the decedent, to the 
heirs, beneficiaries, or other persons or entities entitled by law to 
receive it.
    Probate clerk means a BIA or tribal employee who is responsible for 
preparing a probate package.
    Probate specialist means a BIA or tribal employee who is trained in 
Indian probate matters.
    Restricted land means land the title to which is held by an 
individual Indian or a tribe and which can be alienated or encumbered 
by the owner only with the approval of the Secretary because of 
limitations contained in the conveyance instrument pursuant to federal 
law.
    Secretary means the Secretary of the Interior or his or her 
authorized representative.
    Testate means the decedent executed a valid will before his or her 
death.
    Trust cash assets means the funds held in an IIM account that had 
accumulated or were due and owing to the decedent as of the date of 
death.
    Trust land means the land, or an interest therein, for which the 
United States holds fee title in trust for the benefit of an individual 
Indian.
    We or us means either an official of BIA or a tribe performing 
probate functions under a BIA contract or compact.

[[Page 11810]]

    Will means a written testamentary document that was signed by the 
decedent and attested to by two disinterested adult witnesses, and that 
states who will receive the decedent's trust or restricted property.
    You or I means an interested party, as defined herein, with an 
interest in the decedent's trust estate unless a specific section says 
otherwise.


Sec.  15.3  Will the Secretary probate all the property in Indian 
estates?

    (a) No. We will probate only the trust or restricted property in 
the estate of an Indian decedent.
    (b) We will not probate:
    (1) Real or personal property in an estate of an Indian decedent 
that is not trust or restricted property;
    (2) Restricted property derived from allotments in the estates of 
members of the Five Civilized Tribes (Cherokee, Choctaw, Chickasaw, 
Creek and Seminole) in Oklahoma; and
    (3) Restricted interests derived from allotments made to Osage 
Indians in Oklahoma (Osage Nation) and Osage headright interests.
    (c) We will probate the estate of a deceased member of the Five 
Civilized Tribes or Osage Nation who owns an interest in land derived 
from an individual Indian other than the Five Civilized Tribes or Osage 
Nation.


Sec.  15.4  How does the probate process work?

    The basic steps of the probate process are:
    (a) We find out about a person's death (see subpart B of this part 
for details);
    (b) We prepare a probate package that includes documents you send 
us (see subpart C of this part for details);
    (c) We refer the completed probate package to OHA for assignment to 
a deciding official (see subpart D of this part for details); and
    (d) The deciding official decides how to distribute the property 
and/or funds deposited in an IIM account and we make the distribution 
(see subpart D of this part for details).

Subpart B--Starting the Probate Process


Sec.  15.101  How do I begin the BIA probate process?

    As soon as possible you should contact the nearest BIA agency or 
regional office where the decedent was enrolled to inform us of the 
decedent's death.
    (a) You should provide a certified copy of the death certificate, 
if one exists.
    (b) If a death certificate does not exist, you should provide an 
affidavit of death prepared by the tribe with whom the decedent was 
associated or someone who knows about the decedent's death that 
specifies what is known about the date and cause of the decedent's 
death. A copy of any supporting documents that may be available, such 
as an obituary or death notice or a church or court record, should be 
provided along with the affidavit.


Sec.  15.102  May I notify BIA of a death if I am not related to the 
decedent?

    Yes. You do not need to be related to the decedent in order to 
notify us of the death. You can be a friend, neighbor, or any other 
interested party.


Sec.  15.103  When should BIA be notified of a death?

    There is no deadline for notifying us of a death. However, you 
should notify us of a death as soon as possible after the person dies.


Sec.  15.104  What other documents does BIA need to prepare a probate 
package?

    (a) You should provide us with the following documents and 
information before we can begin to process the probate package:
    (1) Social Security number of the decedent;
    (2) The birth certificate or other record of birth of the decedent, 
if available;
    (3) The death certificate or other reliable evidence of death as 
required by Sec.  15.101;
    (4) A list of known creditors against the estate and their 
addresses;
    (5) Current names and addresses of potential heirs and 
beneficiaries;
    (6) Any statements renouncing an interest in the estate;
    (7) Documents from a court of competent jurisdiction, including but 
not limited to:
    (i) All marriage licenses of the decedent;
    (ii) All divorce decrees of the decedent;
    (iii) Adoption and guardianship records relevant to the decedent;
    (iv) Any sworn statements regarding the decedent's family, 
including any statements of paternity or maternity;
    (v) Any name changes; and
    (vi) Any order requiring payment of child support;
    (8) All originals or copies of wills and codicils, and any 
revocations; and
    (9) Any additional documents you provide or that we request.
    (b) You must inform us if any of the documents or information 
identified in this part are not available.


Sec.  15.105  Will BIA wait to begin the probate process until it is 
notified of the decedent's death?

    No, we will not wait to begin the probate process until we are 
notified of the decedent's death. If we find out about the death of a 
person, and if the decedent meets the criteria in Sec.  15.3, we will 
initiate the process to collect the necessary documentation. You should 
not assume that we will find out about a death. To assure timely 
distribution of the estate, you should notify us as provided in Sec.  
15.101.


Sec.  15.106  Can I get emergency assistance for funeral services from 
the decedent's IIM account?

    (a) You may ask BIA for up to $1,000 from the decedent's IIM 
account if:
    (1) You are responsible for making the funeral arrangements on 
behalf of the family of a decedent who had an IIM account;
    (2) You have an immediate need to pay for funeral arrangements 
before burial; and
    (3) The decedent's IIM account contains more than $2,500 on the 
date of death.
    (b) You must apply for assistance under paragraph (a) of this 
section and submit to BIA an original itemized estimate of the cost of 
the service to be rendered and the identification of the service 
provider.
    (c) We may approve reasonable costs up to $1,000 that are necessary 
for the burial services, taking into consideration:
    (1) The total amount in the account;
    (2) The number of probable heirs or beneficiaries of whom we are 
aware;
    (3) The amount of any claims against the account of which we are 
aware; and
    (4) The availability of non-trust funds, and any other relevant 
factor.
    (d) We will make payments directly to the providers of the 
services.


Sec.  15.107  Who prepares an Indian probate package?

    The probate specialist or probate clerk at the agency or tribe 
where the decedent is an enrolled member will prepare the probate 
package in consultation with the probable heirs or beneficiaries who 
can be located.


Sec.  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 package?

    Unless otherwise provided by Federal law, the BIA agency that has 
jurisdiction over the tribe with the strongest association with the 
decedent will serve as the home agency and will prepare the probate 
package if the decedent either:

[[Page 11811]]

    (a) Was not an enrolled member of a tribe, but owns interests in 
trust or restricted property; or
    (b) Was a member of more than one tribe.

Subpart C--Preparing the Probate Package


Sec.  15.201  What will BIA do with the documents that I provide?

    Once we receive the documents that you provide us under Sec.  
15.104, the probate specialist or probate clerk will:
    (a) Use the documents to prepare a probate package; and
    (b) Consult with you and any other sources to obtain any additional 
information needed for a complete package.


Sec.  15.202  If the decedent owed me money, how do I file a claim 
against the estate?

    (a) If you wish to make a claim against the estate of a decedent, 
you must submit to us an original and two copies of an itemized 
statement of the debt. The statement must show the amount of the 
original debt and the remaining balance on the date of the decedent's 
death.
    (b) The itemized statement must state whether you have filed a 
claim against the decedent's non-trust assets.
    (c) We must receive your claim within 60 days from the date we 
received the verification of the decedent's death in Sec.  15.101 to 
include the claim as part of the probate package.


Sec.  15.203  What must the complete probate package contain?

    The complete probate package must contain all of the following:
    (a) A certified copy of the death certificate, or if one does not 
exist, some other reliable evidence of death as required by Sec.  
15.101;
    (b) A completed Form OHA-7, ``Data for Heirship Findings and Family 
History,'' certified by BIA, with the enrollment or other identifying 
number shown for each potential heir or beneficiary, if such number has 
been assigned;
    (c) A certified inventory of trust or restricted real property;
    (d) A statement describing all income generating activity;
    (e) A copy of the decedent's IIM account ledger showing the balance 
of the account at the date of death and the balance of the account at 
the date of probate package submission;
    (f) All original or certified copies of wills, codicils, and any 
revocations of wills or codicils;
    (g) Any statements renouncing interest that have been submitted to 
the agency;
    (h) Claims of creditors against the estate, date stamped to show 
when the agency received them;
    (i) All documentation of payment of claims before the probate 
proceeding;
    (j) All other documents required in Sec.  15.104;
    (k) Tribal options to purchase interests of a decedent;
    (l) Affidavit of the probate clerk or probate specialist describing 
what efforts have been made to locate any missing probable heirs and 
beneficiaries; and
    (m) Any other documentation that may be required at the time of 
probate proceedings.

Subpart D--Probate Processing and Distributions


Sec.  15.301  What happens after BIA prepares the probate package?

    (a) After we have assembled all the documents required by Sec.  
15.203, a probate specialist will refer the case to OHA for assignment 
to a deciding official.
    (b) At the same time the probate specialist refers the case to OHA, 
we will notify all interested parties of:
    (1) The right of the probable heirs or beneficiaries to request a 
formal hearing before an ALJ or Indian probate judge;
    (2) The identification of the probable legal heirs or the 
submission of an original or certified copy of a will or revocation and 
listed beneficiaries;
    (3) Any known claims against the estate; and
    (4) The address of the OHA office where the probate package has 
been sent.
    (c) We will send the notice described in paragraph (b) of this 
section by regular mail. It will inform the probable heirs or 
beneficiaries that:
    (1) They may ask OHA for an in-person hearing at a site convenient 
to most of the parties, a video conference or teleconference hearing 
(if available), or a decision based on documents in the probate 
package; and
    (2) If they do not request a formal hearing, the probate case may 
be assigned to an attorney decision maker, who will convene an in-
person informal hearing at a site convenient to most of the parties.


Sec.  15.302  What happens after the probate package is referred to 
OHA?

    After OHA receives the probate package, it will assign the case to 
a deciding official, who will conduct the probate proceeding and issue 
a written decision or order in accordance with 43 CFR part 4, subpart 
D.


Sec.  15.303  What happens after the probate decision is made?

    (a) We will not pay claims, transfer title to land, or distribute 
trust cash assets for 75 days after the final OHA decision or order is 
mailed to the interested parties.
    (b) If an interested party files a timely request for de novo 
review, a request for rehearing, or an appeal in accordance with 43 CFR 
part 4, subpart D, we will not pay claims, transfer title to land, or 
distribute trust cash assets until the request or appeal is resolved.
    (c) After 75 days, if no request for de novo review, request for 
rehearing, or appeal has been filed, or after any request or appeal has 
been resolved, the following actions will take place:
    (1) The LTRO will change its land title records for the trust and 
restricted property in accordance with the final decision or order; and
    (2) OST will pay claims and distribute the IIM account in 
accordance with the final decision or order.

Subpart E--Information and Records


Sec.  15.401  How can I find out the status of a probate?

    You may request information about the status of an Indian probate 
from any BIA agency or regional office.


Sec.  15.402  Who owns the records associated with this part?

    (a) Records are the property of the United States if they:
    (1) Are made or received by a tribe or tribal organization in the 
conduct of a federal trust function under this part, including the 
operation of a trust program pursuant to Public Law 93-638 as amended; 
and
    (2) Evidence the organization, functions, policies, decisions, 
procedures, operations, or other activities undertaken in the 
performance of a federal trust function under this part.
    (b) Records are the property of the tribe if they are:
    (1) Not covered by paragraph (a) of this section; and
    (2) Are made or received by a tribe or tribal organization in the 
conduct of business with the Department of the Interior under this 
part.


Sec.  15.403  How must records associated with this part be preserved?

    (a) Any organization, including tribes and tribal organizations, 
that has records identified in Sec.  15.402(a):
    (1) Must preserve the records in accordance with approved 
Departmental records retention procedures under the Federal Records 
Act, 44 U.S.C. Chapters 29, 31 and 33; and

[[Page 11812]]

    (2) Is subject to inspection by the Secretary and the Archivist of 
the United States with respect to these records and related records 
management practices and safeguards required under the Federal Records 
Act.
    (b) A tribe or tribal organization should preserve the records 
identified in Sec.  15.402(b) for the period authorized by the 
Archivist of the United States for similar Department of the Interior 
records under 44 U.S.C. Chapter 33. If a tribe or tribal organization 
does not do so, it may be unable to adequately document essential 
transactions or furnish information necessary to protect its legal and 
financial rights or those of persons affected by its activities.

TITLE 43--PUBLIC LANDS: INTERIOR

PART 4--DEPARTMENT HEARINGS AND APPEALS PROCEDURES

0
2. Revise the authority citation to part 4 to read as follows:

    Authority: 5 U.S.C. 301; 43 U.S.C. 1201.

0
3. Revise paragraph (c) of Sec.  4.27 to read as follows:


Sec.  4.27  Standards of conduct.

* * * * *
    (c) Disqualification. (1) An Office of Hearings and Appeals 
deciding official must withdraw from a case if circumstances exist that 
would disqualify a judge in such circumstances under the recognized 
canons of judicial ethics.
    (2) A party may file a motion seeking the disqualification of a 
deciding official, setting forth in detail the circumstances that the 
party believes require disqualification. Any supporting facts must be 
established by affidavit or other sufficient evidence. A copy of the 
motion should be sent to the Director.
    (3) The head of the appropriate unit within the Office or the 
Director may decide whether disqualification is required if the 
deciding official does not withdraw under paragraph (c)(1) of this 
section or in response to a motion under paragraph (c)(2) of this 
section.
    (4) For purposes of this section, ``deciding official'' includes an 
attorney decision maker or Indian probate judge as defined in Sec.  
4.201, an administrative law judge, an administrative judge, or a 
member of any Board.

Subpart D--Rules Applicable in Indian Affairs Hearings and Appeals

0
4. Revise the authority citation for subpart D to read as follows:

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 372-74, 410; Pub. L. 
99-264, 100 Stat. 61, as amended.

0
5. Revise Sec. Sec.  4.200 and the undesignated center heading to read 
as follows:

Scope of Subpart; Definitions


Sec.  4.200  How to use this subpart.

    (a) The following table is a guide to the contents of this subpart 
by subject matter.

------------------------------------------------------------------------
    For provisions relating to . . .              consult . . .
------------------------------------------------------------------------
(1) All proceedings in subpart D.......  Sec.  Sec.   4.200 and 4.201.
(2) The probate of trust estates of      Sec.  Sec.   4.202 through
 Indians who die possessed of trust       4.282 and 4.310 through 4.323.
 property.
(i) Probate matters generally..........  Sec.  Sec.   4.202, 4.206,
                                          4.208, 4.210, 4.211, 4.250
                                          through 4.270, 4.273 through
                                          4.282, and 4.310 through
                                          4.323.
(ii) Informal probate proceedings        Sec.  Sec.   4.212 through
 before an attorney decision maker.       4.215.
(iii) Formal probate proceedings before  Sec.  Sec.   4.203 through
 an administrative law judge or Indian    4.205, 4.207, 4.216 through
 probate judge.                           4.242, 4.271, and 4.272.
(3) Tribal purchase of certain property  Sec.  Sec.   4.300 through
 interests of decedents under special     4.308.
 laws applicable to particular tribes.
(4) Appeals to the Board of Indian       Sec.  Sec.   4.330 through
 Appeals from actions or decisions of     4.340.
 BIA.
(5) Determinations under the White       Sec.  Sec.   4.350 through
 Earth Reservation Land Settlement Act.   4.357.
------------------------------------------------------------------------

    (b)(1) Except as provided in paragraph (b)(2) of this section, the 
regulations referred to in paragraph (a)(2) of this section do not 
apply to the restricted property of deceased Indians of the Five 
Civilized Tribes, deceased Osage Indians, and members of any tribe 
organized under 25 U.S.C. 476, to the extent that the constitution, by-
laws or charter of such tribe may be inconsistent with this subpart.
    (2) The regulations referred to in paragraph (a)(2) of this section 
do apply to trust or restricted property inherited by such deceased 
Indian or member of such tribe from someone who was a member of a tribe 
not included in paragraph (b)(1) of this section.
    (c) Except as limited by the provisions in this subpart, the rules 
in subparts A and B of this part apply to these proceedings.

0
6. Revise Sec. Sec.  4.201, 4.202, 4.203, 4.204, 4.205, 4.206, 4.207, 
and 4.208 to read as follows:


Sec.  4.201  Definitions.

    Administrative law judge means an administrative law judge with the 
Office of Hearings and Appeals (OHA) appointed pursuant to the 
Administrative Procedure Act, 5 U.S.C. 3105.
    Agency means the Bureau of Indian Affairs (BIA) agency office, or 
any other designated office in BIA, having jurisdiction over trust or 
restricted property and money. This term also means any office of a 
tribe that has contracted or compacted BIA probate function under 25 
U.S.C. 450f or 458cc.
    Attorney decision maker means an attorney with OHA who conducts an 
informal hearing and renders a decision in any probate case that does 
not require a formal hearing and a decision by an administrative law 
judge or Indian probate judge.
    Beneficiary means any individual who is designated in a decedent's 
will to receive trust or restricted property or money. The term 
includes both a devisee (someone who receives real property in a will) 
and a legatee (someone who receives personal property in a will).
    Bequeath means to give personal property to someone in a will.
    Bequest (or legacy) means a gift of personal property in a will.
    BIA means the Bureau of Indian Affairs within the Department of the 
Interior.
    Board means the Board of Indian Appeals within OHA, authorized by 
the Secretary to hear, consider, and determine finally for the 
Department appeals taken by aggrieved parties from actions by OHA 
deciding officials on petitions for rehearing or reopening, and

[[Page 11813]]

allowance of attorney fees, and from actions of BIA officials as 
provided in Sec.  4.1(b)(2).
    Child or children includes any child adopted by the decedent.
    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.
    Creditor means any individual or entity that submits a claim for 
payment from a decedent's estate.
    Day means a calendar day, unless otherwise stated.
    Decedent means a person who is deceased.
    Deciding official means an administrative law judge, Indian probate 
judge, or attorney decision maker.
    Decision or order means a written document issued by a deciding 
official making determinations as to heirs, wills, beneficiaries, and 
creditors' claims, and ordering distribution of property and money.
    De novo review means a process in which an administrative law judge 
or Indian probate judge will, without regard to the decision previously 
issued in the case by an attorney decision maker:
    (1) Take a fresh look at a probate case;
    (2) Conduct a formal hearing as necessary or appropriate; and
    (3) Issue a decision.
    Department means the Department of the Interior.
    Devise when used as a verb means to give real property to someone 
in a will. When used as a noun, it means a gift of real property in a 
will.
    Estate means the trust cash assets, restricted or trust lands, and 
other trust property owned by the decedent at the time of his or her 
death.
    Formal hearing means a trial-type proceeding, conducted by an 
administrative law judge or Indian probate judge, in which interested 
parties present evidence through the testimony of witnesses and the 
introduction of relevant documents.
    Heir means any individual who receives trust or restricted property 
or money from a decedent in an intestate proceeding.
    IIM account means funds held in an individual Indian money (IIM) 
account by the Office of the Special Trustee for American Indians (OST) 
or by a tribe performing this function under a contract or compact.
    Indian probate judge means an employee of OHA, other than an 
administrative law judge or attorney decision maker, to whom the 
Secretary has delegated authority to conduct hearings in probate cases.
    Informal hearing means a meeting convened by an attorney decision 
maker in which interested parties present relevant information on 
uncontested issues.
    Interested party means:
    (1) Any probable or actual heir;
    (2) Any beneficiary under a will;
    (3) Any party asserting a claim against a deceased Indian's estate; 
and
    (4) Any tribe having a statutory option to purchase the trust or 
restricted property interest of a decedent.
    Intestate means the decedent died without a valid will.
    LTRO means the Land Titles and Records Office within BIA.
    Minor means an individual who has not reached the age of majority 
as defined by the applicable tribal or state law.
    OHA means the Office of Hearings and Appeals, Department of the 
Interior.
    OST means the Office of the Special Trustee for American Indians, 
Department of the Interior.
    Probate means the legal process by which applicable tribal law, 
State law, or Federal law that affects the distribution of a decedent's 
estate is applied to:
    (1) Determine the heirs;
    (2) Determine the validity of wills and determine beneficiaries;
    (3) Determine whether claims against the estate will be paid from 
trust funds; and
    (4) Transfer any funds or property held in trust by the Secretary 
for a decedent, or any restricted property of the decedent, to the 
heirs, beneficiaries, or other persons or entities entitled by law to 
receive it.
    Probate specialist means a BIA or tribal employee who is trained in 
Indian probate matters.
    Restricted property means real or personal property held by an 
Indian that he or she cannot alienate or encumber without the consent 
of the Secretary. In this subpart, restricted property is treated as if 
it were trust property. Except with respect to Sec.  4.200(b)(1), the 
term ``restricted property'' as used in this subpart does not include 
the restricted lands of the Five Civilized Tribes or Osage Tribe of 
Indians.
    Secretary means the Secretary of the Interior or an authorized 
representative.
    Solicitor means the Solicitor of the Department of the Interior or 
an authorized representative.
    Superintendent means a BIA Superintendent or other BIA official 
having jurisdiction over an estate, including an area field 
representative or one holding equivalent authority.
    Testate means the decedent executed a valid will before his or her 
death.
    Trust cash assets means the funds held in an IIM account that had 
accumulated or were due and owing to the decedent as of the date of 
death.
    Trust property means real or personal property, or an interest 
therein, which the United States holds in trust for the benefit of an 
individual Indian.
    Will or last will and testament means a written testamentary 
document that was signed by the decedent and attested to by two 
disinterested adult witnesses, and that states who will receive the 
decedent's trust or restricted property.

Determination of Heirs; Approval of Wills; Settlement of Indian Trust 
Estates


Sec.  4.202  General authority of deciding officials.

    (a) An attorney decision maker may conduct an informal hearing and 
render a decision in any probate case that does not require a formal 
hearing and a decision by an administrative law judge or Indian probate 
judge.
    (b) Cases that require a formal hearing and a decision by an 
administrative law judge or Indian probate judge are those that meet 
one or more of the following criteria:
    (1) A probable heir or beneficiary requests a formal hearing at any 
time before the attorney decision maker renders a decision;
    (2) A will exists that is complex, ambiguous, of questionable 
validity, or contested;
    (3) An interested party contests a claim from a creditor or family 
member;
    (4) Questions exist about family relationships, including questions 
about adoption of an heir or paternity;
    (5) The case involves a minor heir whose rights might be 
jeopardized;
    (6) Prior probate orders conflict on an issue relevant to the case;
    (7) The jurisdiction of any court that issued an order that has 
been used as a supporting document in the case is challenged;
    (8) Questions exist concerning the decedent's domicile;
    (9) There are other problems with the case requiring an evidentiary 
hearing;
    (10) The case requires a determination as to a nonexistent person 
or other allotment irregularity under Sec.  4.203;
    (11) The case involves a presumption of death under Sec.  4.204;
    (12) The case requires a determination of escheat under Sec.  
4.205;
    (13) The case requires a determination of nationality, citizenship, 
or status affecting the character of land titles under Sec.  
4.206(a)(2);
    (14) The interested parties reach a settlement agreement under 
Sec.  4.207; or

[[Page 11814]]

    (15) The case involves a tribal purchase of a decedent's interest 
under Sec.  4.300 et seq.
    (c) For probate cases within their respective jurisdictions, 
deciding officials will:
    (1) Determine the heirs of any Indian who dies intestate possessed 
of trust property;
    (2) Approve or disapprove the will of a deceased Indian disposing 
of trust property;
    (3) Accept or reject any full or partial renunciation of interest 
in both testate and intestate proceedings;
    (4) Allow or disallow creditors' claims against the estate of a 
deceased Indian; and
    (5) Decree the distribution of trust property to heirs and 
beneficiaries.
    (d) ``Distribution'' under paragraph (c)(5) of this section 
includes partial distribution to known heirs or beneficiaries where one 
or more potential heirs or beneficiaries are missing but not presumed 
dead. In these cases, the deciding official will first attribute to and 
set aside for the missing person or persons the share or shares that 
the missing person or persons would be entitled to if living.
    (e) In any case in which de novo review is sought following a 
decision by an attorney decision maker under Sec.  4.215, an 
administrative law judge or Indian probate judge will review the case 
de novo, hold hearings as necessary or appropriate, and issue a 
decision.


Sec.  4.203  Determination as to nonexistent persons and other 
irregularities of allotments.

    (a) An administrative law judge or Indian probate judge will hear 
and determine:
    (1) Whether trust patents covering allotments of land were issued 
to nonexistent persons; and
    (2) Whether more than one trust patent covering allotments of land 
had been issued to the same person under different names and numbers or 
through other errors in identification.
    (b) The administrative law judge or Indian probate judge will 
proceed as provided in Sec.  4.202(c) if he or she determines under 
paragraph (a) of this section that:
    (1) A trust patent was issued to an existing person, or separate 
persons received the allotments under consideration; and
    (2) Any such person is deceased without having had his or her 
estate probated.
    (c) The administrative law judge or Indian probate judge will issue 
a decision setting forth his or her determination, and will provide 
notice thereof to interested parties under Sec.  4.240(b), if he or she 
determines under paragraph (a) of this section that either:
    (1) A person did not exist; or
    (2) More than one allotment was issued to the same person.


Sec.  4.204  Presumption of death.

    (a) An administrative law judge or Indian probate judge will 
receive evidence on and determine the issue of whether any person, by 
reason of unexplained absence, is to be presumed dead.
    (b) If an administrative law judge or Indian probate judge 
determines that an Indian person possessed of trust property is to be 
presumed dead, the administrative law judge or Indian probate judge 
will proceed as provided in Sec.  4.202(c).


Sec.  4.205  Escheat.

    An administrative law judge or Indian probate judge will determine 
whether any Indian holder of trust property died intestate without 
heirs and--
    (a) With respect to trust property other than on the public domain, 
order the escheat of such property in accordance with 25 U.S.C. 373a; 
or
    (b) With respect to trust property on the public domain, submit to 
the Board of Indian Appeals the records thereon, together with 
recommendations as to the disposition of said property under 25 U.S.C. 
373b.


Sec.  4.206  Determinations of nationality, citizenship, or status 
affecting character of land titles.

    (a) In cases where the right and duty of the Government to hold 
property in trust depends thereon:
    (1) A deciding official will determine the Indian or non-Indian 
status of heirs or beneficiaries; and
    (2) An administrative law judge or Indian probate judge will 
determine the nationality or citizenship of heirs or beneficiaries, or 
whether Indian heirs or beneficiaries of U.S. citizenship are of a 
class as to whose property the Government's supervision and trusteeship 
have been terminated.
    (b) Determinations under paragraph (a) of this section will be made 
either in current probate proceedings or in completed estates after 
reopening such estates under, but without regard to the 3-year limit 
in, Sec.  4.242.


Sec.  4.207  Settlement agreement.

    (a) An administrative law judge or Indian probate judge may approve 
a settlement agreement between interested parties resolving any issue 
in the probate proceeding if he or she finds that:
    (1) All parties to the agreement are fully advised as to all 
material facts;
    (2) All parties to the agreement are fully cognizant of the effect 
of the agreement on their rights; and
    (3) It is in the best interest of the parties to settle rather than 
to continue litigation.
    (b) In considering the proposed settlement agreement, the 
administrative law judge or Indian probate judge may take and receive 
evidence as to the respective values of specific items of property. 
Superintendents and irrigation project engineers must supply all 
necessary information concerning any liability or lien for payment of 
irrigation construction and of irrigation operation and maintenance 
charges.
    (c) If the administrative law judge or Indian probate judge 
approves the settlement agreement under paragraph (a) of this section, 
he or she will issue a final order approving the settlement agreement 
and distributing the estate in accordance with its provisions. This 
order will be construed as any other order of distribution establishing 
title in heirs and beneficiaries and will not be construed as a 
partition or sale transaction within the provisions of 25 CFR part 152.
    (1) If land titles are to be transferred, the necessary deeds must 
be prepared and executed at the earliest possible date.
    (2) Upon failure or refusal of any interested party to execute and 
deliver any deed necessary to accomplish the settlement, the 
administrative law judge or Indian probate judge will settle the issues 
and enter an order as if no agreement had been attempted.
    (d) Administrative law judges or Indian probate judges are 
authorized to approve all deeds or conveyances necessary to accomplish 
a settlement under this section.


Sec.  4.208  Renunciation of interest.

    (a) Any probable heir or beneficiary, not a minor, may wholly or 
partially renounce intestate succession or a devise or bequest of trust 
or restricted property, including the retention of a life estate. To do 
this, the probable heir or beneficiary must file a signed and 
acknowledged declaration of renunciation with the deciding official 
before entry of the final order.
    (b) No interest in property renounced under paragraph (a) of this 
section is considered to have vested in the heir or beneficiary, and 
the renunciation is not considered a transfer by gift of the property 
renounced. Rather, the renounced property passes as if the

[[Page 11815]]

person renouncing the interest had predeceased the decedent.
    (c) A renunciation filed in accordance with this section will be 
considered accepted when implemented in an order by a deciding official 
and will be irrevocable thereafter.
    (d) All disclaimers or renunciations previously filed with and 
implemented in an order by a deciding official are hereby ratified as 
valid and effective.

0
7. Revise Sec. Sec.  4.210 and 4.211 to read as follows:

Commencement of Probate Proceedings


Sec.  4.210  Commencement of probate.

    (a) The probate of a trust estate before a deciding official will 
commence when the probate specialist files with OHA all information 
shown in the records relative to the family of the deceased and his or 
her property.
    (1) The information must include the complete probate package 
described in 25 CFR 15.203 and any other relevant information.
    (2) If OHA determines that the probate package is not complete, it 
may request the missing information from BIA or return the case to BIA 
for further processing.
    (b) The agency must promptly transmit to the deciding official any 
creditor's or other claims that are received after the case is 
transmitted to OHA, for a determination of their timeliness, validity, 
priority, and allowance under Sec. Sec.  4.250 and 4.251.


Sec.  4.211  Assignment to deciding official.

    Within 30 days after OHA receives the complete probate package, OHA 
will assign the case to an attorney decision maker, administrative law 
judge, or Indian probate judge, as shown in the following table:

----------------------------------------------------------------------------------------------------------------
  The case will be assigned to . . .          for . . .                 if . . .               and if . . .
----------------------------------------------------------------------------------------------------------------
(a) An attorney decision maker.......  summary processing       as of the date of the    the case meets the
                                        under Sec.  Sec.         decedent's death, the    other criteria in Sec.
                                        4.212 and 4.214.         estate contained only      4.212(a).
                                                                 trust cash assets of
                                                                 less than $5,000.
(b) An attorney decision maker.......  an informal hearing and  as of the date of the    the case meets the
                                        decision under Sec.      decedent's death, the    other criteria in Sec.
                                        Sec.   4.213 and 4.214.  estate contained trust     4.213(a).
                                                                 cash assets of $5,000
                                                                 or more or other trust
                                                                 property.
(c) An administrative law judge or     a formal hearing and     the case does not meet
 Indian probate judge.                  decision under Sec.      the criteria in
                                        Sec.   4.216 through     paragraphs (a) or (b)
                                        4.240.                   of this section.
(d) An administrative law judge or     Summary or informal      no attorney decision
 Indian probate judge.                  processing under Sec.    maker is available to
                                        Sec.   4.212 through     handle a case under
                                        4.214.                   paragraphs (a) or (b)
                                                                 of this section.
----------------------------------------------------------------------------------------------------------------


0
8. Revise Sec.  4.212 and add an undesignated center heading to read as 
follows:

Summary and Informal Probate Proceedings


Sec.  4.212  Summary process for estates containing only trust cash 
estates of less than $5,000.

    (a) A decedent's estate may be processed summarily by an attorney 
decision maker if:
    (1) The estate contained only trust cash assets of less than $5,000 
as of the date of the decedent's death;
    (2) The case does not meet the criteria in Sec.  4.202(b);
    (3) Federal law or a tribal inheritance code approved by the 
Secretary does not provide otherwise.
    (b) Any interested party may request a formal hearing before an 
administrative law judge or Indian probate judge to determine the 
proper distribution of the trust cash assets. This request for a formal 
hearing, if desired, must be made before the attorney decision maker 
renders a decision. Upon receiving a request for a formal hearing, OHA 
will assign or transfer the case to an administrative law judge or 
Indian probate judge.
    (c) Within 60 days after OHA receives the complete probate package, 
if no interested party has requested a formal hearing before an 
administrative law judge or Indian probate judge, the attorney decision 
maker to whom the case has been assigned will:
    (1) Provide notice equivalent to that required for a formal hearing 
under Sec. Sec.  4.216-4.217;
    (2) Assemble the probable heirs and beneficiaries; and
    (3) Hold an informal hearing to determine the distribution of the 
trust cash assets.
    (d) The attorney decision maker may schedule a supplemental 
informal hearing as necessary, in accordance with Sec.  4.235.
    (e) Within 30 days after the informal hearing, if no interested 
party has requested a formal hearing before an administrative law judge 
or Indian probate judge, the attorney decision maker will issue a 
written order in accordance with Sec.  4.214.
    (f) Any interested party may seek de novo review of the case 
following the decision of the attorney decision maker in accordance 
with Sec.  4.215.
    (g) If de novo review has not been sought within 60 days of the 
date of the written order, the attorney decision maker must submit:
    (1) The complete original record to the LTRO;
    (2) A complete duplicate copy of the record to the agency that 
prepared the probate package; and
    (3) A copy of any relevant portions of the record to any other 
affected agency.

0
9. Add Sec. Sec.  4.213, 4.214, and 4.215 to read as follows:


Sec.  4.213  Informal process for cases that do not require a formal 
hearing.

    (a) A decedent's estate may be processed informally by an attorney 
decision maker if:
    (1) The estate contained trust cash assets of $5,000 or more as of 
the date of the decedent's death or contained other trust property;
    (2) The case does not meet the criteria in Sec.  4.202(b);
    (3) Federal law or a tribal inheritance code approved by the 
Secretary does not provide otherwise.
    (b) Any interested party may request a formal hearing before an 
administrative law judge or Indian probate judge to determine the 
proper distribution of the estate. This request for a formal hearing, 
if desired, must be made before the attorney decision maker

[[Page 11816]]

renders a decision. Upon receiving a request for a formal hearing, OHA 
will assign or transfer the case to an administrative law judge or 
Indian probate judge.
    (c) Within 120 days after OHA receives the complete probate 
package, if no interested party has requested a formal hearing before 
an administrative law judge or Indian probate judge, the attorney 
decision maker to whom the case has been assigned will:
    (1) Provide notice equivalent to that required for a formal hearing 
under Sec. Sec.  4.216-4.217;
    (2) Assemble the probable heirs and beneficiaries; and
    (3) Hold an informal hearing to determine the distribution of the 
trust assets.
    (d) The attorney decision maker may schedule a supplemental 
informal hearing as necessary, in accordance with Sec.  4.235.
    (e) Within 60 days after the informal hearing, if no interested 
party has requested a formal hearing before an administrative law judge 
or Indian probate judge, the attorney decision maker will issue a 
written order in accordance with Sec.  4.214.
    (f) Any interested party may seek de novo review of the case 
following the decision of the attorney decision maker in accordance 
with Sec.  4.215.
    (g) If de novo review has not been sought within 60 days of the 
date of the written order, the attorney decision maker must submit:
    (1) The complete original record to the LTRO;
    (2) A complete duplicate copy of the record to the agency that 
prepared the probate package; and
    (3) A copy of any relevant portions of the record to any other 
affected agency.


Sec.  4.214  Written decision of attorney decision maker.

    Following the informal hearing in Sec.  4.212 or 4.213, the 
attorney decision maker will issue a written decision that:
    (a) In all cases, lists the names, identifying numbers as assigned 
by BIA, birth dates, relationships to the decedent, and shares of the 
heirs, or finds that the decedent died leaving no legal heirs, and 
provides citations to the law of descent and distribution in accordance 
with which the decision is made;
    (b) In testate cases, approves or disapproves a will, interprets 
provisions of the approved will, provides the names, identifying 
numbers as assigned by BIA, and relationships of the beneficiaries to 
the decedent, and describes the property each beneficiary is to 
receive;
    (c) Allows or disallows claims against the estate in accordance 
with Sec. Sec.  4.250-4.251, and orders the amount of payment for all 
approved claims;
    (d) States whether the heirs or beneficiaries are Indian or non-
Indian;
    (e) Determines any rights of dower, curtesy, or homestead that may 
constitute a burden upon the interest of the heirs;
    (f) Attaches a certified copy of the inventory of trust or 
restricted lands, if any; and
    (g) Advises all interested parties of their right to seek de novo 
review in accordance with Sec.  4.215, and that, if they fail to do so, 
the decision of the attorney decision maker will become final upon 
expiration of the 60-day period provided in Sec.  4.215(c).


Sec.  4.215  De novo review following decision of attorney decision 
maker.

    (a) Any interested party who is adversely affected by a written 
decision of an attorney decision maker under Sec.  4.214 may seek de 
novo review of the case by an administrative law judge or Indian 
probate judge by filing a request with the attorney decision maker.
    (b) The request for de novo review must be in writing and signed, 
and must contain the following information:
    (1) The name of the decedent;
    (2) A description of the appellant's relationship to the decedent;
    (3) An explanation of how the appellant is adversely affected by 
the decision of the attorney decision maker; and
    (4) An explanation of what errors the appellant believes the 
attorney decision maker made.
    (c) The request for de novo review by an administrative law judge 
or Indian probate judge must be sent or delivered to the attorney 
decision maker within 60 days after the date that appears on the 
decision. If the request is mailed, it must be postmarked within 60 
days after the date of the decision.
    (d) After the 60-day period has expired, an interested party who is 
adversely affected by a written decision of an attorney decision maker 
under Sec.  4.214 may file with the attorney decision maker a request 
for de novo review by an administrative law judge or Indian probate 
judge for one or more of the following reasons:
    (1) The party did not receive notice of the probate;
    (2) The party obtained new evidence or information after the 
decision was made; or
    (3) The party has evidence that was known at the time of the 
probate proceeding but was not included in the probate package.
    (e) Within 10 days of receiving the request for de novo review, the 
attorney decision maker will notify the Superintendent and all other 
interested parties of the request, and OHA will assign the case to an 
administrative law judge or Indian probate judge.
    (f) The administrative law judge or Indian probate judge will 
review the merits of the case de novo, conduct a formal hearing as 
necessary or appropriate pursuant to the regulations in this subpart, 
and issue a new decision in accordance with Sec.  4.240.

0
10. Add Sec.  4.216 and two undesignated center headings to read as 
follows:

Formal Probate Proceedings

Notice


Sec.  4.216  Notice.

    (a) Before conducting a formal hearing to determine the heirs of a 
deceased Indian or probate his or her will, the administrative law 
judge or Indian probate judge must cause notice of the time and place 
of the hearing to be posted.
    (1) The notice must be posted at least 20 days before the hearing 
date in five or more conspicuous places in the vicinity of the 
designated place of hearing.
    (2) The administrative law judge or Indian probate judge may cause 
postings in such other places and reservations as he or she deems 
appropriate.
    (3) A certificate showing the date and place of posting must be 
signed by the person or official who performs the act.
    (b) The administrative law judge or Indian probate judge must serve 
or cause to be served a copy of the notice on each interested party 
known to the administrative law judge or Indian probate judge and on 
each attesting witness if a will is offered:
    (1) By personal service in sufficient time in advance of the date 
of the hearing to enable the person served to attend the hearing; or
    (2) By mail, addressed to the person at his or her last known 
address, in sufficient time in advance of the date of the hearing to 
enable the addressee served to attend the hearing. The administrative 
law judge or Indian probate judge must cause a certificate, as to the 
date and manner of the mailing, to be made on the record copy of the 
notice.
    (c) All interested parties, known and unknown, including creditors, 
will be bound by the decision based on the hearing if they lived near 
any place of posting during the posting period, whether or not they had 
actual notice of the hearing. With respect to interested parties not 
living near the place of

[[Page 11817]]

posting, a rebuttable presumption of actual notice will arise upon the 
mailing of the notice at a reasonable time before the hearing, unless 
the notice is returned by the postal service to the office of the 
administrative law judge or Indian probate judge unclaimed by the 
addressee.
    (d) When a record reveals that a tribe has a statutory option to 
purchase interests of a decedent:
    (1) The administrative law judge or Indian probate judge must 
notify the tribe of the pendency of a proceeding; and
    (2) The certificate of mailing of notice of probate hearing or of a 
final decision in probate to the tribe at its record address will be 
conclusive evidence that the tribe had notice of the decedent's death 
and of the probate proceedings.

0
11. Add Sec.  4.217 to read as follows:


Sec.  4.217  Contents of notice.

    (a) In the notice of a formal hearing, the administrative law judge 
or Indian probate judge must:
    (1) Specify that, at the stated time and place, the administrative 
law judge or Indian probate judge will take testimony to determine the 
heirs of the decedent (naming him or her) and, if a will is offered for 
probate, testimony as to the validity of the will (describing it by 
date);
    (2) Name all known probable heirs of the decedent, and, if a will 
is offered for probate, the beneficiaries under the will and the 
attesting witnesses to the will;
    (3) Cite this subpart as the authority and jurisdiction for holding 
the hearing;
    (4) Inform all persons having an interest in the estate of the 
decedent, including persons having claims against the estate, to be 
present at the hearing or their rights may be lost by default; and
    (5) State that the hearing may be continued to another time and 
place.
    (b) A continuance may be announced either at the original hearing 
by the administrative law judge or Indian probate judge or by an 
appropriate notice posted at the announced place of hearing on or 
before the announced hearing date and hour.

0
12. Revise Sec. Sec.  4.220, 4.221, 4.222, 4.223, 4.224, and 4.225 to 
read as follows:

Depositions, Discovery, and Prehearing Conference


Sec.  4.220  Production of documents for inspection and copying.

    (a) An interested party may make a written demand to produce 
documents for inspection and copying or photographing. This demand:
    (1) May be made at any stage of the proceeding before the 
conclusion of the formal hearing;
    (2) May be made upon any other party to the proceeding or upon a 
custodian of records on Indians or their trust property;
    (3) Must be made in writing, and a copy must be filed with the 
administrative law judge or Indian probate judge; and
    (4) May demand any documents, papers, records, letters, 
photographs, or other tangible things that are:
    (i) Relevant to the issues;
    (ii) In the other party's or custodian's possession, custody, or 
control; and
    (iii) Not privileged.
    (b) Upon failure of prompt compliance, the administrative law judge 
or Indian probate judge may issue an appropriate order upon a petition 
filed by the requesting party.
    (c) On his or her own motion, the administrative law judge or 
Indian probate judge may issue an order to any interested party or 
custodian of records for the production of material or information that 
is relevant to the issues and not privileged. The administrative law 
judge or Indian probate judge may do this after notifying all parties 
at any time before closing the record.
    (d) Custodians of official records will furnish and reproduce 
documents, or permit their reproduction, in accordance with the rules 
governing the custody and control of such records.


Sec.  4.221  Depositions.

    (a) Stipulation. Depositions in connection with a formal hearing 
may be taken upon stipulation of the parties. Failing an agreement 
therefor, depositions may be ordered under paragraphs (b) and (c) of 
this section.
    (b) Application for taking deposition. When an interested party 
files a written application, the administrative law judge or Indian 
probate judge may at any time thereafter order the taking of the sworn 
testimony of any person by deposition upon oral examination for the 
purpose of discovery or for use as evidence at a formal hearing. The 
application must be in writing and must set forth:
    (1) The name and address of the proposed deponent;
    (2) The name and address of the person, qualified under paragraph 
(d) of this section to take depositions, before whom the proposed 
examination is to be made;
    (3) The proposed time and place of the examination, which must be 
at least 20 days after the date of the filing of the application; and
    (4) The reasons why the deposition should be taken.
    (c) Order for taking deposition. If after examination of the 
application, the administrative law judge or Indian probate judge 
determines that the deposition should be taken, he or she will order 
its taking. The order must be served upon all interested parties and 
must state:
    (1) The name of the deponent;
    (2) The time and place of the examination, which must be at least 
15 days after the date of the order except as stipulated otherwise; and
    (3) The name and address of the officer before whom the examination 
is to be made. The officer and the time and place need not be the same 
as those requested in the application.
    (d) Qualifications of officer. The deponent must appear before the 
administrative law judge or Indian probate judge or before an officer 
authorized to administer oaths by the law of the United States or by 
the law of the place of the examination.
    (e) Procedure on examination. The deponent must be examined under 
oath or affirmation and must be subject to cross-examination. The 
deponent's testimony must be recorded by the officer or someone in the 
officer's presence. An applicant who requests the taking of a person's 
deposition must make his or her own arrangements for payment of any 
costs incurred.
    (f) Submission to witness; changes; signing. (1) When the testimony 
is fully transcribed, the deposition must be submitted to the deponent 
for examination and must be read to or by him or her, unless 
examination and reading are waived by the deponent or by all other 
interested parties.
    (2) Any changes in form or substance that the deponent desires to 
make must be entered upon the deposition by the officer with a 
statement of the reasons given by the deponent for making them.
    (3) The deposition must then be signed by the deponent, unless the 
interested parties by stipulation waive the signing, or the witness is 
ill or cannot be found or refuses to sign.
    (4) If the deposition is not signed by the deponent, the officer 
must sign it and state on the record the fact of the waiver, the 
illness or absence of the deponent, or the refusal to sign together 
with the reason, if any, given therefore. The deposition may then be 
used as fully as though signed, unless the administrative law judge or 
Indian probate judge holds that the reason given for refusal to sign 
requires rejection of the deposition in whole or in part.
    (g) Certificates by officer. The officer must certify on the 
deposition that the deponent was duly sworn by the officer

[[Page 11818]]

and that the deposition is a true record of the deponent's testimony. 
The officer must then securely seal the deposition, together with two 
copies thereof, in an envelope and must personally deliver or mail the 
same by certified or registered mail to the administrative law judge or 
Indian probate judge.
    (h) Use of depositions. (1) A deposition ordered and taken in 
accordance with the provisions of this section may be used in a hearing 
if the administrative law judge or Indian probate judge finds that:
    (i) The witness is absent;
    (ii) The witness's presence cannot be readily obtained;
    (iii) The evidence is otherwise admissible; and
    (iv) Circumstances make it desirable in the interest of fairness to 
allow the deposition to be used.
    (2) If the interested party on whose application a deposition was 
taken refuses to offer the deposition, or any part thereof, in 
evidence, any other interested party or the administrative law judge or 
Indian probate judge may introduce the deposition or any portion 
thereof on which he or she wishes to rely.


Sec.  4.222  Written interrogatories; admission of facts and documents.

    (a) An interested party may serve upon any other interested party 
written interrogatories and requests for admission of facts and 
documents. The interested party may do this only if:
    (1) The interrogatories and requests are served in sufficient time 
to permit answers to be filed before the hearing;
    (2) A copy of the interrogatories and requests is filed with the 
administrative law judge or Indian probate judge; and
    (3) The interrogatories and requests are drawn with the purpose of 
defining the issues in dispute between the parties and facilitating the 
presentation of evidence at the hearing.
    (b) A party receiving interrogatories or requests served under 
paragraph (a) of this section must:
    (1) Serve answers upon the requesting party within 30 days from the 
date of service of the interrogatories or requests, or within another 
deadline agreed upon by the parties or prescribed by the administrative 
law judge or Indian probate judge; and
    (2) File a copy of the answers with the administrative law judge or 
Indian probate judge.
    (c) Within 10 days after written interrogatories are served upon a 
party, that party may serve cross-interrogatories for answer by the 
witness to be interrogated.


Sec.  4.223  Objections to and limitations on production of documents, 
depositions, and interrogatories.

    The administrative law judge or Indian probate judge may limit the 
time, place, and scope of discovery under Sec. Sec.  4.220, 4.221, and 
4.222. The administrative law judge or Indian probate judge may do 
this:
    (a) Upon timely motion by any interested party, if that party also 
gives proper notice and shows good cause; or
    (b) Upon his or her own motion if a party's dilatory tactics or 
unreasonable demands will delay the orderly progress of the proceeding 
or cause unacceptable hardship to a party or witness.


Sec.  4.224  Failure to comply with discovery.

    (a) If a party fails to comply with discovery under Sec. Sec.  
4.220 through 4.223, without showing a satisfactory excuse or 
explanation, the administrative law judge or Indian probate judge may:
    (1) Decide the fact or issue relating to the material requested to 
be produced, or the subject matter of the probable testimony, in 
accordance with the claims of the other interested party or in 
accordance with other evidence available to the administrative law 
judge or Indian probate judge; or
    (2) Make such other ruling as the administrative law judge or 
Indian probate judge determines just and proper.
    (b) For purposes of paragraph (a) of this section, failure to 
comply with discovery includes failure to:
    (1) Comply with a request for the production of a document under 
Sec.  4.220;
    (2) Appear for examination under Sec.  4.221;
    (3) Respond to interrogatories or requests for admissions under 
Sec.  4.222; or
    (4) Comply with an order of the administrative law judge or Indian 
probate judge issued under Sec.  4.223.


Sec.  4.225  Prehearing conference.

    Before a formal hearing, the administrative law judge or Indian 
probate judge may, upon his or her own motion or upon the request of 
any interested party, call upon the parties to appear for a conference 
to:
    (a) Simplify or clarify the issues;
    (b) Obtain stipulations, admissions, agreements on documents, 
understandings on matters already of record, or similar agreements that 
will avoid unnecessary proof;
    (c) Limit the number of expert or other witnesses to avoid 
excessively cumulative evidence;
    (d) Effect possible agreement disposing of all or any of the issues 
in dispute; and
    (e) Resolve such other matters as may simplify and shorten the 
hearing.

0
13. Revise Sec.  4.230 and the undesignated center heading to read as 
follows:

Formal Hearings


Sec.  4.230  Authority and duties of the administrative law judge or 
Indian probate judge.

    (a) The authority of the administrative law judge or Indian probate 
judge in all formal hearings in probate proceedings includes, but is 
not limited to authority:
    (1) To administer oaths and affirmations;
    (2) To issue subpoenas under the provisions of 25 U.S.C. 374 upon 
his or her own initiative or within his or her discretion upon the 
request of any interested party, to any person whose testimony he or 
she believes to be material to a hearing;
    (3) To permit any interested party to cross-examine any witness;
    (4) To appoint a guardian ad litem to represent any minor or 
incompetent interested party at hearings;
    (5) To rule upon offers of proof and receive evidence;
    (6) To take and cause depositions to be taken and to determine 
their scope; and
    (7) To otherwise regulate the course of the hearing and the conduct 
of witnesses, interested parties, and attorneys at law appearing 
therein.
    (b) Upon the failure or refusal of any person upon whom a subpoena 
has been served to appear at a hearing or to testify, the 
administrative law judge or Indian probate judge may file a petition in 
the appropriate U.S. District Court for the issuance of an order 
requiring the appearance and testimony of the witness.

0
14. Revise Sec. Sec.  4.231, 4.232, 4.233, 4.234, 4.235, and 4.236 to 
read as follows:


Sec.  4.231  Formal hearings.

    (a) All testimony in formal Indian probate hearings must be under 
oath and must be taken in public, except in circumstances that, in the 
opinion of the administrative law judge or Indian probate judge, 
justify all but interested parties to be excluded from the hearing.
    (b) The proceedings of hearings must be recorded verbatim.
    (c) The record must include a showing of the names of all 
interested parties and attorneys who attended such hearing.


Sec.  4.232  Evidence; form and admissibility.

    (a) Interested parties may offer at a formal hearing such relevant 
evidence as they deem appropriate under the

[[Page 11819]]

generally accepted rules of evidence of the State in which the evidence 
is taken, subject to the administrative law judge's or Indian probate 
judge's supervision as to the extent and manner of presentation of such 
evidence.
    (b) The administrative law judge or Indian probate judge may admit 
letters or copies thereof, affidavits, or other evidence not ordinarily 
admissible under the generally accepted rules of evidence. The weight 
to be attached to evidence presented in any particular form is within 
the discretion of the administrative law judge or Indian probate judge, 
taking into consideration all the circumstances of the particular case.
    (c) Stipulations of fact and stipulations of testimony that would 
be given by witnesses were such witnesses present, agreed upon by the 
interested parties, may be used as evidence at the hearing.
    (d) The administrative law judge or Indian probate judge may in any 
case require evidence in addition to that offered by the interested 
parties.


Sec.  4.233  Proof of wills, codicils, and revocations.

    (a) Self-proved wills. A will executed as provided in Sec.  4.260 
may, at the time of its execution, be made self-proved, and testimony 
of the witnesses in the probate thereof may be made unnecessary by the 
affidavits of the testator and attesting witnesses.
    (1) These affidavits must be made before an officer authorized to 
administer oaths, must be attached to the will, and must be in 
substantially the following form and content:


State of --------


County of --------ss.


I,--------, being first duly sworn, on oath, depose and say: That I am 
an -------- (enrolled or unenrolled) member of the -------- Tribe of 
Indians in the State of --------; that on the ------ day of ------, 
19----/20----, I requested -------- to prepare a will for me; that the 
attached will was prepared; that I requested -------- and-------- to 
act as witnesses thereto; that I declared to said witnesses that said 
instrument was my last will and testament; that I signed said will in 
the presence of both witnesses; that they signed the same as witnesses 
in my presence and in the presence of each other; that said will was 
read and explained to me (or read by me), after being prepared and 
before I signed it, and it clearly and accurately expresses my wishes; 
and that I willingly made and executed said will as my free and 
voluntary act and deed for the purposes therein expressed.

-----------------------------------------------------------------------
Testator/Testatrix

We, -------- and --------, each being first duly sworn, on oath, depose 
and state: That on the ------ day of ------, 19----/20----, --------, a 
member of the -------- Tribe of Indians of the State of --------, 
published and declared the attached instrument to be his/her last will 
and testament, signed the same in the presence of both of us, and 
requested both of us to sign the same as witnesses; that we, in 
compliance with his/her request, signed the same as witnesses in his/
her presence and in the presence of each other; that said testator/
testatrix was not acting under duress, menace, fraud, or undue 
influence of any person, so far as we could ascertain, and in our 
opinion was mentally capable of disposing of all his/her estate by 
will.

-----------------------------------------------------------------------

Witness

-----------------------------------------------------------------------

Witness

Subscribed and sworn to before me this ------ day of ------, 19----/
20----, by -------- testator/testatrix, and by -------- and --------, 
attesting witnesses.

-----------------------------------------------------------------------

-----------------------------------------------------------------------

(Title)

    (2) If uncontested, a self-proved will may be approved and 
distribution may be ordered thereunder with or without the testimony of 
any attesting witness.
    (b) Self-proved codicils and revocations. A codicil to, or a 
revocation of, a will may be made self-proved in the same manner as 
provided in paragraph (a) of this section with respect to a will.
    (c) Will contest. If the approval of a will, codicil thereto, or 
revocation thereof is contested, the attesting witnesses who are in the 
reasonable vicinity of the place of hearing and who are of sound mind 
must be produced and examined.
    (1) If none of the attesting witnesses resides near the place of 
hearing at the time appointed for proving the will, the administrative 
law judge or Indian probate judge may:
    (i) Admit the testimony of other witnesses to prove the 
testamentary capacity of the testator and the execution of the will; 
and
    (ii) As evidence of the execution, admit proof of the handwriting 
of the testator and of the attesting witnesses, or of any of them.
    (2) The provisions of Sec.  4.232 are applicable with respect to 
remaining issues.


Sec.  4.234  Witnesses, interpreters, and fees.

    (a) Interested parties who desire a witness to testify or an 
interpreter to serve at a formal hearing must make their own financial 
and other arrangements therefor, and subpoenas will be issued where 
necessary and proper.
    (b) The administrative law judge or Indian probate judge may call 
witness and interpreters and order payment out of the estate assets of 
per diem, mileage, and subsistence at a rate not to exceed that allowed 
to witnesses called in the U.S. District Courts.
    (c) In hardship situations, the administrative law judge or Indian 
probate judge may order payment of per diem and mileage for 
indispensable witnesses and interpreters called for the parties. In the 
order for payment, the administrative law judge or Indian probate judge 
must specify whether such costs are to be allocated and charged against 
the interest of the party calling the witness or against the estate 
generally.
    (d) Costs of administration allowed against the estate under 
paragraphs (b) or (c) of this section will have a priority for payment 
greater than that for any creditor claims allowed. Upon receiving an 
order, the Superintendent must immediately initiate payment of these 
sums from the estate account, or if funds are insufficient, then out of 
funds as they are received in the estate account before closure of the 
estate, with the proviso that these costs must be paid in full with a 
later allocation against the interest of a party, if the administrative 
law judge or Indian probate judge has so ordered.


Sec.  4.235  Supplemental hearings.

    After the matter has been submitted but before the time the 
deciding official has rendered his or her decision, the deciding 
official may upon his or her own motion or upon motion of any 
interested party schedule a supplemental hearing if he or she deems it 
necessary. The notice must set forth the purpose of the supplemental 
hearing and must be served upon all interested parties in the manner 
provided in Sec.  4.216. Where the need for such supplemental hearing 
becomes apparent during any hearing, the deciding official may announce 
the time and place for such supplemental hearing to all those present 
and no further notice need be given. In that event, the records must 
clearly show who was present at the time of the announcement.


Sec.  4.236  Record.

    (a) After the completion of the formal hearing, the administrative 
law judge or

[[Page 11820]]

Indian probate judge will make up the official record containing:
    (1) A copy of the posted public notice of hearing showing the 
posting certifications;
    (2) A copy of each notice served on interested parties with proof 
of mailing;
    (3) The record of the evidence received at the hearing, including 
any transcript made of the testimony;
    (4) Claims filed against the estate;
    (5) Will and codicils, if any;
    (6) Inventories and valuations of the estate;
    (7) Pleadings and briefs filed;
    (8) Special or interim orders;
    (9) Data for heirship findings and family history;
    (10) The decision and the notices thereof; and
    (11) Any other material or documents deemed material by the 
administrative law judge or Indian probate judge.
    (b) The administrative law judge or Indian probate judge must lodge 
the original record with the designated LTRO in accordance with 25 CFR 
part 150. A duplicate copy must be lodged with the Superintendent 
originating the probate. A partial record must also be furnished to the 
Superintendents of other affected agencies. When a hearing transcript 
has not been prepared:
    (1) The verbatim recording of the hearing must be retained in the 
office of the administrative law judge or Indian probate judge issuing 
the decision until the time allowed for rehearing or appeal has 
expired; and
    (2) The original record returned to the LTRO must contain a 
statement indicating that no transcript was prepared.

0
15. Revise the undesignated center heading and Sec.  4.240 to read as 
follows:

Decisions in Formal Proceedings


Sec.  4.240  Decision of the administrative law judge or Indian probate 
judge and notice thereof.

    (a) The administrative law judge or Indian probate judge must 
decide the issues of fact and law involved in any formal proceedings 
and must incorporate the following in his or her decision:
    (1) In all cases, the names, identifying numbers as assigned by 
BIA, birth dates, relationships to the decedent, and shares of heirs, 
with citations to the law of descent and distribution in accordance 
with which the decision is made, or the fact that the decedent died 
leaving no legal heirs;
    (2) In testate cases, approval or disapproval of the will with 
construction of its provisions, and the names, identifying numbers as 
assigned by BIA, and relationships to the testator of all beneficiaries 
and a description of the property which each is to receive;
    (3) Allowance or disallowance of claims against the estate;
    (4) Whether heirs or beneficiaries are non-Indian, exclusively 
alien Indians, or Indians whose property is not subject to Federal 
supervision; and
    (5) A determination of any rights of dower, curtesy, or homestead 
that may constitute a burden upon the interest of the heirs.
    (b) When the administrative law judge or Indian probate judge 
issues a decision, he or she must:
    (1) Issue a notice of the decision to all parties who have or claim 
any interest in the estate; and
    (2) Must mail a copy of the notice, together with a copy of the 
decision, to the Superintendent and to each interested party 
simultaneously.
    (c) The decision will not become final and no distribution may be 
made thereunder until the expiration of the 60 days allowed for the 
filing of a petition for rehearing by aggrieved parties as provided in 
Sec.  4.241.

0
16. Revise Sec. Sec.  4.241 and 4.242 to read as follows:


Sec.  4.241  Rehearing.

    (a) Any person aggrieved by the decision of the administrative law 
judge or Indian probate judge may, within 60 days after the date on 
which notice of the decision is mailed to the interested parties, file 
with the administrative law judge or Indian probate judge a written 
petition for rehearing.
    (1) The petition must:
    (i) Be under oath; and
    (ii) State specifically and concisely the grounds on which it is 
based.
    (2) If the petition is based on newly-discovered evidence, it must:
    (i) Be accompanied by affidavits or declarations of witnesses 
stating fully what the new testimony is to be; and
    (ii) State justifiable reasons for the failure to discover and 
present that evidence, tendered as new, at the formal hearings held 
before the issuance of the decision.
    (b) The administrative law judge or Indian probate judge, upon 
receiving a petition for rehearing, must promptly forward a copy to the 
Superintendent. The Superintendent must not initiate payment of claims 
or distribute the estate while such petition is pending, unless 
otherwise directed by the administrative law judge or Indian probate 
judge.
    (c) If proper grounds are not shown, or if the petition is not 
filed within the time prescribed in paragraph (a) of this section, the 
administrative law judge or Indian probate judge will:
    (1) Issue an order denying the petition and setting forth his or 
her reasons therefor; and
    (2) Furnish copies of the order to the petitioner, the 
Superintendent, and the interested parties.
    (d) If the petition appears to show merit, the administrative law 
judge or Indian probate judge must:
    (1) Cause copies of the petition and supporting papers to be served 
on those persons whose interest in the estate might be adversely 
affected by the granting of the petition;
    (2) Allow all persons served a reasonable, specified time in which 
to submit answers or legal briefs in opposition to the petition; and
    (3) Reconsider, with or without a hearing as he or she may 
determine, the issues raised in the petition; he or she may adhere to 
the former decision, modify or vacate it, or make such further order as 
is warranted.
    (e) Upon entry of a final order, the administrative law judge or 
Indian probate judge must lodge the complete record relating to the 
petition with the designated LTRO under Sec.  4.236(b), and furnish a 
duplicate record thereof to the Superintendent.
    (f) Successive petitions for rehearing are not permitted, and 
except for the issuance of necessary orders nunc pro tunc to correct 
clerical errors in the decision, the jurisdiction of the administrative 
law judge or Indian probate judge terminates upon the issuance of a 
decision finally disposing of a petition for rehearing. Nothing herein 
prevents the Board from remanding a case for further hearing or 
rehearing after appeal.
    (g) At the time the final decision is entered following the filing 
of a petition for rehearing, the administrative law judge or Indian 
probate judge must direct a notice of such action with a copy of the 
decision to the Superintendent and to the interested parties and must 
mail the same by regular mail to the said parties at their addresses of 
record.
    (h) No distribution may be made under such order for a period of 75 
days following the mailing of a notice of decision pending the filing 
of a notice of appeal by an aggrieved party as provided in this 
subpart.


Sec.  4.242  Reopening.

    (a) A person claiming an interest in an estate may file a petition 
in writing for reopening of the case if he or she:
    (1) Had no actual notice of the original proceedings;
    (2) Was not on the reservation or otherwise in the vicinity at any 
time

[[Page 11821]]

while the public notices of the hearing were posted; and
    (3) Files the petition within 3 years after the date of a final 
decision issued by an administrative law judge, Indian probate judge, 
or the Board, except as provided in Sec. Sec.  4.203 and 4.206 and 
paragraph (i) of this section.
    (b) The petition must be addressed to the administrative law judge 
or Indian probate judge and filed at his or her office. The petitioner 
must also furnish a copy of the petition to the Superintendent. All 
grounds for the reopening must be set forth fully. If based on alleged 
errors of fact, all such allegations must be under oath and supported 
by affidavits.
    (c) If the administrative law judge or Indian probate judge finds 
that proper grounds are not shown, he or she will issue an order 
denying the petition and giving the reasons for the denial. Copies of 
the administrative law judge's or Indian probate judge's decision must 
be mailed to the petitioner, the Superintendent, and to those persons 
who share in the estate.
    (d) If the petition appears to show merit, the administrative law 
judge or Indian probate judge must cause copies of the petition and all 
papers filed by the petitioner to be served on those persons whose 
interest in the estate might be adversely affected by the granting of 
the petition.
    (1) These persons may resist the petition by filing answers, cross-
petitions, or briefs. The filings must be made within the time periods 
set by the administrative law judge or Indian probate judge.
    (2) The administrative law judge or Indian probate judge will then 
reconsider, with or without a hearing as he or she may determine, prior 
actions taken in the case and may either adhere to, modify, or vacate 
the original decision.
    (3) Copies of the administrative law judge's or Indian probate 
judge's decision must be mailed to the petitioner, to all persons who 
received copies of the petition, and to the Superintendent.
    (e) To prevent manifest error, an administrative law judge or 
Indian probate judge may reopen a case within 3 years from the date of 
the final decision, after due notice on his or her own motion, or on 
petition of a BIA officer. Copies of the administrative law judge's or 
Indian probate judge's decision must be mailed to all interested 
parties and to the Superintendent.
    (f) The administrative law judge or Indian probate judge may 
suspend distribution of the estate or the income therefrom during the 
pendency of reopening proceedings by order directed to the 
Superintendent.
    (g) The administrative law judge or Indian probate judge must lodge 
the record made in disposing of a reopening petition with the 
designated LTRO under Sec.  4.236(b) and must furnish a duplicate 
record thereof to the Superintendent.
    (h) No distribution may be made under a decision issued under 
paragraph (c), (d), or (e) of this section for 75 days following the 
mailing of the copy of the decision as therein provided, pending the 
filing of a notice of appeal by an aggrieved party.
    (i) A petition for reopening filed more than 3 years after the 
entry of a final decision in a probate proceeding will be allowed only 
upon a showing that:
    (1) A manifest injustice will occur;
    (2) A reasonable possibility exists for correction of the error;
    (3) The petitioner had no actual notice of the original 
proceedings; and
    (4) The petitioner was not on the reservation or otherwise in the 
vicinity at any time while the public notices were posted.
    (j) The administrative law judge or Indian probate judge may deny a 
petition filed under paragraph (i) of this section on the basis of the 
petition and available BIA records. No such petition will be granted 
unless the administrative law judge or Indian probate judge:
    (1) Has caused copies of the petition and all other papers filed by 
the petitioner to be served on those persons whose interest in the 
estate might be adversely affected by the granting of the petition; and
    (2) Has allowed those persons an opportunity to resist the petition 
by filing answers, cross petitions, or briefs as provided in paragraph 
(d) of this section.


Sec.  4.243  [Removed]

0
17. Remove Sec.  4.243 and the undesignated center heading.

0
18. Revise Sec. Sec.  4.250, 4.251, and 4.252 to read as follows:

Claims


Sec.  4.250  Filing and proof of creditor claims; limitations.

    (a) All claims against the estate of a deceased Indian must be 
filed with the agency:
    (1) Within 60 days from the date BIA receives a certified copy of 
the death certificate or other verification of the decedent's death 
under 25 CFR 15.101; or
    (2) Within 20 days from the date the creditor is chargeable with 
notice of the decedent's death, whichever of these dates is later, 
unless all of the heirs and/or beneficiaries agree to waive the 
applicable time limit and allow a late claim to be filed.
    (b) No claim will be paid from trust or restricted assets when the 
deciding official is aware that the decedent's non-trust estate may be 
available to pay the claim.
    (c) All claims must be filed in triplicate, itemized in detail as 
to dates and amounts of charges for purchases or services and dates and 
amounts of payments on account.
    (1) Each claim must show the names and addresses of all parties in 
addition to the decedent from whom payment might be sought.
    (2) Each claim must be supplemented by an affidavit, in triplicate, 
of the claimant or someone on his or her behalf that:
    (i) The amount claimed is justly due from the decedent;
    (ii) No payments have been made on the account which are not 
credited thereon as shown by the itemized statement; and
    (iii) There are no offsets to the knowledge of the claimant.
    (d) Claims for care may not be allowed except upon clear and 
convincing evidence that the care was given on a promise of 
compensation and that compensation was expected.
    (e) A claim based on a written or oral contract, express or 
implied, where the claim for relief has existed for such a period as to 
be barred by the State laws at date of decedent's death, cannot be 
allowed.
    (f) Claims sounding in tort not reduced to judgment in a court of 
competent jurisdiction, and other unliquidated claims not properly 
within the jurisdiction of a probate forum, may be barred from 
consideration by an interim order from the deciding official.
    (g) Claims of a State or any of its political subdivisions on 
account of social security or old-age assistance payments will not be 
allowed.


Sec.  4.251  Priority of claims.

    (a) Upon motion of the Superintendent or an interested party, the 
deciding official may authorize payment of the costs of administering 
the estate as they arise and before the allowance of any claims against 
the estate.
    (b) After the costs of administration, the deciding official may 
authorize payment of priority claims as follows:
    (1) Claims for funeral expenses (including the cemetery marker);
    (2) Claims for medical expenses for the last illness;

[[Page 11822]]

    (3) Claims for nursing home or other care facility expenses;
    (4) Claims of an Indian tribe; and
    (5) Claims reduced to judgment by a court of competent 
jurisdiction.
    (c) After the priority claims, the deciding official may authorize 
payment of all remaining claims, referred to as general claims.
    (d) The deciding official has the discretion to decide that part or 
all of an otherwise valid claim is unreasonable, reduce the claim to a 
reasonable amount, or disallow the claim in its entirety.
    (1) If a claim is reduced, the deciding official will order payment 
only of the reduced amount.
    (2) A deciding official may reduce or disallow both priority claims 
and general claims.
    (e) If, as of the date of the initial informal or formal hearing, 
there is not enough money in the IIM account to pay all claims, the 
deciding official will order payment of allowed priority claims first, 
either in the order identified in paragraph (b) of this section or on a 
pro rata (reduced) basis.
    (f) If, as of the date of the initial informal or formal hearing, 
less than $1,000 remains in the IIM account after payment of priority 
claims is ordered, the general claims may be ordered paid on a pro rata 
basis or disallowed in their entirety.
    (g) The unpaid balance of any claims will not be enforceable 
against the estate after the estate is closed.
    (h) Interest or penalties charged against either priority or 
general claims after the date of death will not be paid.


Sec.  4.252  Property subject to claims.

    Claims are payable from income from the lands remaining in trust. 
Further, except as prohibited by law, all trust moneys of the deceased 
on hand or accrued at time of death, including bonds, unpaid judgments, 
and accounts receivable, may be used for the payment of claims, whether 
the right, title, or interest that is taken by an heir or beneficiary 
remains in or passes out of trust.

0
19. Revise Sec. Sec.  4.260, 4.261, and 4.262 to read as follows:

Wills


Sec.  4.260  Making of a will; review as to form; revocation.

    (a) An Indian 18 years of age or over and of testamentary capacity, 
who has any right, title, or interest in trust property, may dispose of 
this property by a will executed in writing and attested by two 
disinterested adult witnesses.
    (b) When an Indian executes a will and submits it to the 
Superintendent, the Superintendent must forward it to the Office of the 
Solicitor for examination as to adequacy of form, and for submission by 
the Office of the Solicitor to the Superintendent of any appropriate 
comments. The will, codicil, or any replacement or copy thereof, may be 
retained by the Superintendent at the request of the testator or 
testatrix for safekeeping. A will must be held in absolute confidence, 
and no person other than the testator may admit its existence or 
divulge its contents before the death of the testator.
    (c) The testator may, at any time during his or her lifetime, 
revoke his or her will by a subsequent will or other writing executed 
with the same formalities as are required in the case of the execution 
of a will, or by physically destroying the will with the intention of 
revoking it. No will that is subject to the regulations of this subpart 
will be deemed to be revoked by operation of the law of any State.
    (d) A will, codicil, or revocation may be made self-proved in the 
manner provided in Sec.  4.233(a)-(b).


Sec.  4.261  Anti-lapse provisions.

    (a) This section applies when:
    (1) An Indian testator devises or bequeaths trust property to any 
of his or her grandparents or to the lineal descendant of a 
grandparent; and
    (2) The beneficiary dies before the testator leaving lineal 
descendants.
    (b) The lineal descendants referred to in paragraph (a)(2) of this 
section take the right, title, or interest so given by the will per 
stirpes.
    (c) Relationship by adoption is equivalent to relationship by 
blood.


Sec.  4.262  Felonious taking of testator's life.

    No person who has been finally convicted of feloniously causing the 
death or taking the life of, or procuring another person to take the 
life of, the testator, may take directly or indirectly any devise or 
bequest under deceased's will. All right, title, and interest existing 
in such a situation will vest and be determined as if the person 
convicted never existed, notwithstanding Sec.  4.261.

0
20. Revise Sec. Sec.  4.270, 4.271, 4.272, and 4.273 to read as 
follows:

Custody and Distribution of Estates


Sec.  4.270  Custody and control of trust estates.

    (a) The Superintendent may:
    (1) Assume custody or control of all tangible trust personal 
property of a deceased Indian; and
    (2) Take such action, including sale of the property, as in his or 
her judgment is necessary for the benefit of the estate, the heirs, and 
the beneficiaries, pending entry of the decision provided for in 
Sec. Sec.  4.214, 4.240, 4.241, or 4.312.
    (b) All expenses, including expenses of roundup, branding, care, 
and feeding of livestock, are chargeable against the estate and may be 
paid from:
    (1) Those funds of the deceased that are under the Department's 
control; or
    (2) The proceeds of a sale of the property or a part thereof.
    (c) If a deciding official has been assigned to adjudicate the 
estate, his or her approval is required before payment can be made 
under paragraph (b)(2) of this section.


Sec.  4.271  Omitted property.

    (a) This section applies when, after issuance of a decision under 
Sec. Sec.  4.214, 4.240, or 4.312, it is found that trust property or 
interest therein belonging to a decedent has not been included in the 
inventory.
    (1) The inventory can be modified to include the omitted property 
for distribution under the original decision.
    (2) Modification may be made either administratively by BIA or by a 
modification order prepared by him or her for the approval and 
signature of a deciding official.
    (3) Copies of all modifications must be furnished to the 
Superintendent and to all those persons who share in the estate.
    (b) When the property to be included takes a different line of 
descent from that shown in the original decision, BIA must notify the 
deciding official, who will proceed to hold an informal or formal 
hearing if necessary and issue a decision under Sec. Sec.  4.214 or 
4.240. The record of any such proceeding must be lodged with the 
designated LTRO under Sec.  4.236(b).


Sec.  4.272  Improperly included property.

    (a) When, after a decision under Sec. Sec.  4.214, 4.240, or 4.312, 
it is found that property has been improperly included in the inventory 
of an estate, the inventory must be modified to eliminate such 
property. A petition for modification may be filed by the 
Superintendent of the agency where the property is located, or by any 
interested party.
    (b) An administrative law judge or Indian probate judge will review 
the record of the title upon which the modification is to be based and 
enter an appropriate decision. If the decision is entered without a 
formal hearing, the administrative law judge or Indian probate judge 
must give notice of his or

[[Page 11823]]

her action to all parties whose rights are adversely affected, allowing 
them 60 days in which to show cause why the decision should not then 
become final.
    (c) Where appropriate, the administrative law judge or Indian 
probate judge may conduct a formal hearing at any stage of the 
modification proceeding. The hearing must be scheduled and conducted in 
accordance with the rules of this subpart. The administrative law judge 
or Indian probate judge will enter a final decision based on his or her 
findings, modifying or refusing to modify the property inventory. His 
or her decision will become final at the end of 60 days from the date 
it is mailed, unless an aggrieved party files a notice of appeal within 
such period. Notice of entry of the decision must be given in 
accordance with Sec.  4.240(b).
    (d) A party aggrieved by the deciding official's decision may 
appeal to the Board under Sec. Sec.  4.310 through 4.323.
    (e) The record of all proceedings must be lodged with the 
designated LTRO under Sec.  4.236(b).


Sec.  4.273  Distribution of estates.

    (a) The Superintendent must initiate payment of allowed claims, 
distribution of the estate, and all other actions required by the 
deciding official's final order 75 days after a final order has been 
issued, unless he or she has received:
    (1) A copy of a request for de novo review filed under Sec.  4.215;
    (2) A copy of a petition for rehearing filed under Sec.  4.241(a); 
or
    (3) A copy of a notice of appeal filed under Sec.  4.320(b).
    (b) The Superintendent must not initiate the payment of claims or 
distribution of the estate during the pendency of proceedings under 
Sec. Sec.  4.215, 4.241, or 4.242, unless the administrative law judge 
or Indian probate judge orders otherwise in writing. The Board may, at 
any time, authorize the administrative law judge or Indian probate 
judge to issue interim orders for payment of claims or for partial 
distribution during the pendency of proceedings on appeal.

0
21. Revise Sec. Sec.  4.281 and 4.282 to read as follows:

Miscellaneous


Sec.  4.281  Claims for attorney fees.

    (a) The deciding official may allow fees for attorneys representing 
Indians in proceedings under this part.
    (1) At the discretion of the deciding official, these fees may be 
chargeable against the interests of the party represented or may be 
taxed as a cost of administration.
    (2) Petitions for allowance of fees must be filed before the close 
of the last hearing and must be supported by whatever proof the 
deciding official requires.
    (3) In determining attorney fees, consideration must be given to 
the fact that the property of the decedent is restricted or held in 
trust and that it is the duty of the Department to protect the rights 
of all interested parties.
    (b) Nothing in this section prevents an attorney from petitioning 
for additional fees to be considered at the disposition of a petition 
for rehearing and again after an appeal on the merits. An order 
allowing attorney fees is subject to a petition for rehearing and to an 
appeal.


Sec.  4.282  Guardians for incompetents.

    Minors and other legal incompetents who are interested parties must 
be represented at all hearings by legally appointed guardians, or by 
guardians ad litem appointed by the deciding official.

0
22. Revise Sec. Sec.  4.300, 4.301, 4.302, 4.303, 4.304, 4.305, 4.306, 
4.307, and 4.308 to read as follows:

Tribal Purchase of Interests Under Special Statutes


Sec.  4.300  Authority and scope.

    (a) Sections 4.300 through 4.308 apply to formal proceedings in 
Indian probate that relate to the tribal purchase of a decedent's 
interests in the trust and restricted land shown in the following 
table.

------------------------------------------------------------------------
  Location of trust or restricted land    Legislation governing purchase
------------------------------------------------------------------------
(1) Yakima Reservation or within the     The Act of December 31, 1970
 area ceded by the Treaty of June 9,      (Pub. L. 91-627; 84 Stat.
 1855 (12 Stat. 1951).                    1874; 25 U.S.C. 607 (1976)),
                                          amending section 7 of the Act
                                          of August 9, 1946 (60 Stat.
                                          968).
(2) Warm Springs Reservation or within   The Act of August 10, 1972
 the area ceded by the Treaty of June     (Pub. L. 92-377; 86 Stat.
 25, 1855 (12 Stat. 37).                  530).
(3) Nez Perce Indian Reservation or      The Act of September 29, 1972
 within the area ceded by the Treaty of   (Pub. L. 92-443; 86 Stat.
 June 11, 1855 (12 Stat. 957).            744).
------------------------------------------------------------------------

    (b) In the exercise of probate authority, an administrative law 
judge or Indian probate judge will determine--
    (1) The entitlement of a tribe to purchase a decedent's interests 
in trust or restricted land under the statutes;
    (2) The entitlement of a surviving spouse to reserve a life estate 
in one-half of the surviving spouse's interests that have been 
purchased by a tribe; and
    (3) The fair market value of such interests, including the value of 
any life estate reserved by a surviving spouse.
    (c) In making a determination under paragraph (b)(1) of this 
section, the following issues will be determined by the official tribal 
roll, which is binding upon the administrative law judge or Indian 
probate judge:
    (1) Enrollment or refusal of the tribe to enroll a specific 
individual; and
    (2) Specification of blood quantum, where pertinent.
    (d) For good cause shown, the administrative law judge or Indian 
probate judge may stay the probate proceeding to permit an aggrieved 
party to pursue an enrollment application, grievance, or appeal through 
the established procedures applicable to the tribe.


Sec.  4.301  Valuation report.

    (a) In all probates, at the earliest possible stage of the 
proceeding before issuance of a probate decision, BIA must furnish a 
valuation of the decedent's interests when the record reveals to the 
Superintendent:
    (1) That the decedent owned interests in land located on one or 
more of the reservations designated in Sec.  4.300; and
    (2) That one or more of the probable heirs or beneficiaries who may 
receive the interests either:
    (i) Is not enrolled in the tribe of the reservation where the land 
is located; or
    (ii) Does not have the required blood quantum in the tribe to hold 
the interests against a claim made by the tribe.
    (b) If there is a surviving spouse whose interests may be subject 
to the tribal option, the valuation must include the value of a life 
estate based on the life of the surviving spouse in one-half of such 
interests. The valuation must be made on the basis of the fair market 
value of the property, including fixed

[[Page 11824]]

improvements, as of the date of decedent's death.
    (c) BIA must include the valuation report in the probate package 
submitted to OHA. Interested parties may examine and copy, at their 
expense, the valuation report at the office of the Superintendent or 
the administrative law judge or Indian probate judge.


Sec.  4.302  Conclusion of probate and tribal exercise of statutory 
option.

    (a) Conclusion of probate; findings in the probate decision. (1) 
When a decedent is shown to have owned land interests in any one or 
more of the reservations designated in Sec.  4.300, the probate 
proceeding relative to the determination of heirs, approval or 
disapproval of a will, and the claims of creditors will first be 
concluded as final for the Department in accordance with Sec. Sec.  
4.216 through 4.282 and Sec. Sec.  4.310 through 4.323. This decision 
is referred to in this section as the ``probate decision.''
    (2) At the formal probate hearing, a finding must be made on the 
record showing those interests in land, if any, that are subject to the 
tribal option.
    (i) The finding must be included in the probate decision setting 
forth the apparent rights of the tribe as against affected heirs or 
beneficiaries and the right of a surviving spouse whose interests are 
subject to the tribal option to reserve a life estate in one-half of 
such interests.
    (ii) If the finding is that there are no interests subject to the 
tribal option, the decision must so state.
    (iii) A copy of the probate decision, to which must be attached a 
copy of the valuation report, must be distributed to all interested 
parties in accordance with Sec.  4.240.
    (b) Tribal exercise of statutory option. (1) A tribe may purchase 
all or a part of the available interests specified in the probate 
decision within 60 days of the probate decision unless a petition for 
rehearing or a demand for hearing has been filed under Sec. Sec.  4.304 
or 4.305.
    (2) If a petition for rehearing or a demand for hearing has been 
filed, a tribe may purchase all or a part of the available interests 
specified in the probate decision within 20 days from the date of the 
decision on rehearing or hearing, whichever is applicable. A tribe may 
not, however, claim an interest less than the decedent's total interest 
in any one individual tract.
    (3) The tribe must file a written notice of purchase with the 
Superintendent, together with the tribe's certification that copies 
have been mailed on the same date to the administrative law judge or 
Indian probate judge and to the affected heirs or beneficiaries. Upon 
failure to timely file a notice of purchase, the right to distribution 
of all unclaimed interests will accrue to the heirs or beneficiaries.


Sec.  4.303  Notice by surviving spouse to reserve a life estate.

    When the heir or beneficiary whose interests are subject to the 
tribal option is a surviving spouse, the spouse may reserve a life 
estate in one-half of such interests. The spouse must file a written 
notice to reserve with the Superintendent within 30 days after the 
tribe has exercised its option to purchase the interest in question, 
together with a certification that copies thereof have been mailed on 
the same date to the administrative law judge or Indian probate judge 
and the tribe. Failure to timely file a notice to reserve a life estate 
will constitute a waiver thereof.


Sec.  4.304  Rehearing.

    Any interested party aggrieved by the probate decision may, within 
60 days from the date of the probate decision, file with the 
administrative law judge or Indian probate judge a written petition for 
rehearing in accordance with Sec.  4.241.


Sec.  4.305  Hearing on tribal option to purchase interests.

    (a) Demand for hearing. Any interested party aggrieved by the 
exercise of the tribal option to purchase the interests in question or 
the valuation of the interests as set forth in the valuation report may 
file with the administrative law judge or Indian probate judge a 
written demand for hearing. The demand must:
    (1) Be filed within 60 days from the date of the probate decision 
or 60 days from the date of the decision on rehearing, or within 20 
days from the date the tribe exercises its option to purchase available 
interests, whichever is applicable;
    (2) Include a certification that copies of the demand have been 
mailed on the same date to the Superintendent and to each interested 
party; and
    (3) State specifically and concisely the grounds upon which it is 
based.
    (b) Notice of hearing. The administrative law judge or Indian 
probate judge must, upon receiving a demand for hearing:
    (1) Set a time and place for the hearing after expiration of the 
60-day period fixed for the filing of the demand for hearing as 
provided in Sec.  4.305(a); and
    (2) Mail a notice of the hearing to all interested parties not less 
than 30 days in advance.
    (c) Burden of proof at the hearing. At the hearing, each party 
challenging the tribe's claim to purchase the interests in question or 
the valuation of the interests as set forth in the valuation report 
will have the burden of proving his or her position.
    (d) Decision after hearing; appeal. (1) Upon conclusion of the 
hearing, the administrative law judge or Indian probate judge will 
issue a decision that determines all of the issues including, but not 
limited to:
    (i) The fair market value of the interests purchased by the tribe; 
and
    (ii) Any adjustment of the fair market value made necessary by the 
surviving spouse's decision to reserve a life estate in one-half of the 
interests.
    (2) The decision must specify the right of appeal to the Board of 
Indian Appeals within 60 days from the date of the decision in 
accordance with Sec. Sec.  4.310 through 4.323.
    (3) The administrative law judge or Indian probate judge must lodge 
the complete record relating to the demand for hearing with the LTRO as 
provided in Sec.  4.236(b), furnish a duplicate record thereof to the 
Superintendent, and mail a notice of such action together with a copy 
of the decision to each interested party.


Sec.  4.306  Time for payment.

    A tribe must pay the full fair market value of the interests 
purchased, as set forth in the valuation report or as determined after 
hearing in accordance with Sec.  4.305, whichever is applicable. 
Payment must be made within 2 years from the date of decedent's death 
or within 1 year from the date of notice of purchase, whichever is 
later.


Sec.  4.307  Title.

    (a) Upon payment by the tribe of the interests purchased, the 
Superintendent must:
    (1) Issue a certificate to the administrative law judge or Indian 
probate judge that payment has been made; and
    (2) File with the certificate all supporting documents required by 
the administrative law judge or Indian probate judge.
    (b) After receiving the certificate and supporting documents, the 
administrative law judge or Indian probate judge will:
    (1) Issue an order that the United States holds title to the 
interests in trust for the tribe;
    (2) File the complete record, including the decision, with the LTRO 
as provided in Sec.  4.236(b);
    (3) Furnish a duplicate copy of the record to the Superintendent; 
and

[[Page 11825]]

    (4) Mail a notice of the action together with a copy of the 
decision to each interested party.


Sec.  4.308  Disposition of income.

    During the pendency of the probate and up to the date of transfer 
of title to the United States in trust for the tribe in accordance with 
Sec.  4.307, all income received or accrued from the land interests 
purchased by the tribe will be credited to the estate.
    Cross Reference: See 25 CFR part 2 for procedures for appeals to 
Area Directors and to the Director of the Bureau of Indian Affairs.

0
23. Revise Sec. Sec.  4.310, 4.311, 4.312, 4.313, 4.314, 4.315, 4.316, 
4.317, and 4.318 to read as follows:

General Rules Applicable to Proceedings on Appeal Before the Interior 
Board of Indian Appeals


Sec.  4.310  Documents.

    (a) Filing. The effective date for filing a notice of appeal or 
other document with the Board during the course of an appeal is:
    (1) For most documents, the date of mailing or the date of personal 
delivery; or
    (2) For a motion for the Board to assume jurisdiction over an 
appeal under 25 CFR 2.20(e), the date that the Board receives the 
motion.
    (b) Serving notices of appeal and pleadings. Any party filing a 
notice of appeal or pleading before the Board must serve copies on all 
interested parties in the proceeding. Service must be accomplished by 
personal delivery or mailing.
    (1) Where a party is represented in an appeal by an attorney or 
other representative authorized under 43 CFR 1.3, service of any 
document on the attorney or representative is service on the party.
    (2) Where a party is represented by more than one attorney, service 
on any one attorney is sufficient.
    (3) The certificate of service on an attorney or representative 
must include the name of the party whom the attorney or representative 
represents and indicate that service was made on the attorney or 
representative.
    (c) Computation of time for filing and service. Except as otherwise 
provided by law, in computing any period of time prescribed for filing 
and serving a document:
    (1) The day upon which the decision or document to be appealed or 
answered was served or the day of any other event after which a 
designated period of time begins to run is not to be included;
    (2) The last day of the period is to be included, unless it is a 
nonbusiness day (e.g., Saturday, Sunday, or Federal holiday), in which 
event the period runs until the end of the next business day; and
    (3) When the time prescribed or allowed is 7 days or less, 
intermediate Saturdays, Sundays, Federal holidays, and other 
nonbusiness days are excluded from the computation.
    (d) Extensions of time. (1) The Board may extend the time for 
filing or serving any document except a notice of appeal.
    (2) A request to the Board for an extension of time must be filed 
within the time originally allowed for filing.
    (3) For good cause the Board may grant an extension of time on its 
own initiative.
    (e) Retention of documents. All documents received in evidence at a 
hearing or submitted for the record in any proceeding before the Board 
will be retained with the official record of the proceeding. The Board, 
in its discretion, may permit the withdrawal of original documents 
while a case is pending or after a decision becomes final upon 
conditions as required by the Board.


Sec.  4.311  Briefs on appeal.

    (a) The appellant may file an opening brief within 30 days after 
receiving the notice of docketing. The appellant must serve copies of 
the opening brief upon all interested parties or counsel and file a 
certificate with the Board showing service upon the named parties. 
Opposing parties or counsel will have 30 days from receiving the 
appellant's brief to file answer briefs, copies of which must be served 
upon the appellant or counsel and all other interested parties. A 
certificate showing service of the answer brief upon all parties or 
counsel must be attached to the answer filed with the Board.
    (b) The appellant may reply to an answering brief within 15 days 
from its receipt. A certificate showing service of the reply brief upon 
all parties or counsel must be attached to the reply filed with the 
Board. Except by special permission of the Board, no other briefs will 
be allowed on appeal.
    (c) BIA is considered an interested party in any proceeding before 
the Board. The Board may request that BIA submit a brief in any case 
before the Board.
    (d) An original only of each document should be filed with the 
Board. Documents should not be bound along the side.
    (e) The Board may also specify a date on or before which a brief is 
due. Unless expedited briefing has been granted, such date may not be 
less than the appropriate period of time established in this section.


Sec.  4.312  Board decisions.

    Decisions of the Board will be made in writing and will set forth 
findings of fact and conclusions of law. The decision may adopt, 
modify, reverse, or set aside any proposed finding, conclusion, or 
order of an administrative law judge, Indian probate judge, or BIA 
official. Distribution of decisions must be made by the Board to all 
parties concerned. Unless otherwise stated in the decision, rulings by 
the Board are final for the Department and must be given immediate 
effect.


Sec.  4.313  Amicus curiae; intervention; joinder motions.

    (a) Any interested person or Indian tribe desiring to intervene, to 
join other parties, to appear as amicus curiae, or to obtain an order 
in an appeal before the Board must apply in writing to the Board 
stating the grounds for the action sought. The Board may grant the 
permission or relief requested for specified purposes and subject to 
limitations it established. This section will be liberally construed.
    (b) Motions to intervene, to appear as amicus curiae, to join 
additional parties, or to obtain an order in an appeal pending before 
the Board must be served in the same manner as appeal briefs.


Sec.  4.314  Exhaustion of administrative remedies.

    (a) No decision of an administrative law judge, Indian probate 
judge, or BIA official that at the time of its rendition is subject to 
appeal to the Board, will be considered final so as to constitute 
agency action subject to judicial review under 5 U.S.C. 704, unless it 
has been made effective pending a decision on appeal by order of the 
Board.
    (b) No further appeal will lie within the Department from a 
decision of the Board.
    (c) The filing of a petition for reconsideration is not required to 
exhaust administrative remedies.


Sec.  4.315  Reconsideration of a Board decision.

    (a) Reconsideration of a decision of the Board will be granted only 
in extraordinary circumstances. Any party to the decision may petition 
for reconsideration. The petition must be filed with the Board within 
30 days from the date of the decision and must contain a detailed 
statement of the reasons why reconsideration should be granted.
    (b) A party may file only one petition for reconsideration.
    (c) The filing of a petition will not stay the effect of any 
decision or order

[[Page 11826]]

and will not affect the finality of any decision or order for purposes 
of judicial review, unless so ordered by the Board.


Sec.  4.316  Remands from courts.

    Whenever any matter is remanded from any Federal court to the Board 
for further proceedings, the Board will remand the matter to an 
administrative law judge, an Indian probate judge, or BIA. In the 
alternative, to the extent the court's directive and time limitations 
permit, the parties will be allowed an opportunity to submit to the 
Board a report recommending procedures for it to follow to comply with 
the court's order. The Board will enter special orders governing 
matters on remand.


Sec.  4.317  Standards of conduct.

    (a) Inquiries about cases. All inquiries about any matter pending 
before the Board must be made to the Chief Administrative Judge of the 
Board or the administrative judge assigned the matter.
    (b) Disqualification. An administrative judge may withdraw from a 
case in accordance with standards found in the recognized canons of 
judicial ethics if the judge deems this action appropriate. If, before 
a decision of the Board, a party files an affidavit of personal bias or 
disqualification with substantiating facts, and the administrative 
judge concerned does not withdraw, the OHA Director will determine the 
matter of disqualification.


Sec.  4.318  Scope of review.

    An appeal will be limited to those issues that were before the 
administrative law judge or Indian probate judge upon the petition for 
rehearing, reopening, or regarding tribal purchase of interests, or 
before the BIA official on review. However, except as specifically 
limited in this part or in title 25 of the Code of Federal Regulations, 
the Board will not be limited in its scope of review and may exercise 
the inherent authority of the Secretary to correct a manifest injustice 
or error where appropriate.

Appeals to the Board of Indian Appeals in Probate Matters


Sec.  4.320  Who may appeal.

    (a) Right of appeal. An interested party has a right to appeal to 
the Board from an order of an administrative law judge or Indian 
probate judge on a petition for rehearing or petition for reopening or 
regarding tribal purchase of interests in a deceased Indian's trust 
estate.
    (b) Notice of appeal. Within 60 days from the date of the decision, 
an appellant must file a written notice of appeal signed by the 
appellant, the appellant's attorney, or other qualified representative 
as provided in 43 CFR 1.3, with the Board of Indian Appeals, Office of 
Hearings and Appeals, U.S. Department of the Interior, 801 North Quincy 
Street, Arlington, Virginia 22203.
    (1) A statement of the errors of fact and law upon which the appeal 
is based must be included in either the notice of appeal or in any 
brief filed.
    (2) The notice of appeal must include the names and addresses of 
parties served.
    (3) A notice of appeal not timely filed will be dismissed for lack 
of jurisdiction.
    (c) Service of copies of notice of appeal. The appellant must 
personally deliver or mail the original notice of appeal to the Board 
of Indian Appeals.
    (1) A copy must be served upon the administrative law judge or 
Indian probate judge whose decision is appealed as well as all 
interested parties.
    (2) The notice of appeal filed with the Board must include a 
certification that service was made as required by this section.
    (d) Action by the administrative law judge or Indian probate judge; 
record inspection. The administrative law judge or Indian probate 
judge, upon receiving a copy of the notice of appeal, must notify the 
Superintendent concerned to return the duplicate record filed under 
Sec. Sec.  4.236(b), 4.241(d), or 4.242(f) to the LTRO designated under 
Sec.  4.236(b). The duplicate record must be conformed to the original 
by the LTRO and will thereafter be available for inspection either at 
the LTRO or at the office of the Superintendent. If a transcript of the 
hearing was not prepared, the administrative law judge or Indian 
probate judge will have a transcript prepared that must be forwarded to 
the Board within 30 days from receiving a copy of the notice of appeal.


Sec.  4.321  Notice of transmittal of record on appeal.

    The original record on appeal must be forwarded by the LTRO to the 
Board by certified mail. Any objection to the record as constituted 
must be filed with the Board within 15 days of receiving the notice of 
docketing issued under Sec.  4.332.


Sec.  4.322  Docketing.

    The appeal will be docketed by the Board upon receiving the 
administrative record from the LTRO. All interested parties as shown by 
the record on appeal must be notified of the docketing. The docketing 
notice must specify the time within which briefs may be filed and must 
cite the procedural regulations governing the appeal.


Sec.  4.323  Disposition of the record.

    (a) After the Board makes a decision other than a remand, it must 
forward to the LTRO designated under Sec.  4.236(b):
    (1) The record filed with the Board; and
    (2) All documents added during the appeal proceedings, including 
any transcripts prepared because of the appeal and the Board's 
decision.
    (b) The LTRO must conform the duplicate record required by Sec.  
4.320(d) to the original sent under paragraph (a)(1) of this section 
and forward the conformed record to the Superintendent concerned.

[FR Doc. 05-4291 Filed 3-7-05; 8:45 am]
BILLING CODE 4310-79-P