[Federal Register Volume 84, Number 211 (Thursday, October 31, 2019)]
[Proposed Rules]
[Pages 58353-58356]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-23748]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 15
Office of the Secretary
43 CFR Parts 4, 30
[Docket No. DOI-2019-0001]
RIN 1094-AA55; 190A2100DD/AAKC001030/A0A501010.999900253G; 19XD0120OS/
DS68241000/DOTN00000.000000/DX68201.QAGENLAM
Updates to American Indian Probate Regulations
AGENCY: Bureau of Indian Affairs, Office of the Secretary, Interior.
ACTION: Advance notice of proposed rulemaking; request for comments.
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SUMMARY: The Department of the Interior (Department) is considering
potential updates to regulations governing probate of property that the
United States holds in trust or restricted status for American Indians.
Since the regulations were revised in 2008, the Department identified
opportunities for improving the probate process. The Department is
seeking Tribal input and public comment on its ideas for improvements
in the regulations in general, and on the potential regulatory changes
identified below in particular.
DATES: Submit written comments by December 30, 2019.
ADDRESSES: You may submit comments by any one of the following methods:
Federal rulemaking portal: www.regulations.gov. The rule
is listed under Agency Docket Number DOI-2019-0001.
Email: [email protected].
Mail, Hand Delivery, or Courier: Ms. Elizabeth Appel,
Office of Regulatory Affairs & Collaborative Action, U.S. Department of
the Interior, 1849 C Street NW, Mail Stop 4660, Washington, DC 20240.
We cannot ensure that comments received after the close of the
comment period (see DATES) will be included in the docket for this
rulemaking and considered. Comments sent to an address other than those
listed above will not be included in the docket for this rulemaking.
Public Availability of Comments
Before including your address, phone number, email address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
FOR FURTHER INFORMATION CONTACT: Elizabeth K. Appel, Director, Office
of Regulatory Affairs & Collaborative Action--Indian Affairs,
[email protected], (202) 273-4680.
SUPPLEMENTARY INFORMATION:
Background
The Department probates thousands of estates each year for American
Indian individuals who own trust or restricted property. The Bureau of
Indian Affairs (BIA), the Office of Hearings and Appeals (OHA), and the
Office of the Special Trustee for American Indians (OST) each play a
role in the probate process. BIA compiles the information necessary to
build a case record (i.e., the probate file) and then transfers the
record to OHA for a judge to hold a hearing and issue a final probate
decision. In accordance with the judge's final probate decision, BIA
distributes the trust or restricted real property (``land'') and OST
distributes the trust personalty (``trust funds'') from the estate.
After the American Indian Probate Reform Act (AIPRA) was enacted in
2004, the Department codified regulations implementing it at 43 CFR
part 30 for the OHA adjudication process and at 25 CFR part 15 for the
BIA and OST portions of the probate process. In an effort to streamline
the process and benefit Indian heirs and devisees, the Department is in
the process of identifying where improvements can be made through
regulatory change.
Identified Issues and Potential Regulatory Changes
The Department has identified parts of the current regulations that
are unclear and/or create uncertainty and recognizes that such problems
can lengthen the time it takes to process probates. The Department is
considering potential approaches to changing these parts of the
regulations and welcomes Tribal input, comment from individuals who
hold trust or restricted property, and comment from the general public.
The issues and potential approaches to improving the probate process
are listed below, in no particular order.
Issue 1: Gaps in AIPRA Intestacy Distribution
AIPRA sets out how a decedent's estate should be distributed when
the decedent dies without a will (i.e., intestate) at 25 U.S.C.
2206(a). AIPRA addresses how the judge should distribute an estate to
any surviving spouse, individual heirs, and/or Tribal heirs, but fails
to account for distribution of trust funds under two circumstances when
there are no eligible familial heirs under AIPRA: (1) The estate
contains trust personalty but no trust real property; and (2) more than
one Tribe has jurisdiction over trust real property in the estate. The
current 43 CFR 30.254 implements AIPRA and the pre-AIPRA Federal
statute for how a judge will distribute the trust real property of a
person who dies without a will (i.e., intestate) and has no heirs.
a. Distribution of Trust Personalty When There Are No AIPRA Heirs
AIPRA's intestacy scheme at 25 U.S.C. 2206(a)(2) is limited
explicitly by the presumption that a decedent's estate contains
interests in trust or restricted land, such that the distribution of a
decedent's trust personalty will follow the distribution of the trust
land interests. AIPRA provides that if there are no other heirs, the
interests will pass to the Tribe with jurisdiction over the trust land
interests. See 25 U.S.C. 2206(a)(2)(B)(v). The current regulation at
Sec. 30.254 incorporates the statutory provision at Sec. 2206(a)(2)
but does not identify trust personalty as a stand-alone category of
trust property for distribution. In practice, this creates instances
where AIPRA's intestacy scheme fails to resolve how trust personalty
will be distributed. Those instances occur when there are no eligible
person heirs and the decedent has no land interests where a Tribe could
have jurisdiction and be considered the ``heir.'' OHA judges have
declined to distribute a decedent's trust personalty estate if it is
the only trust estate asset and there are no eligible person heirs.
Instead, OHA judges dismiss these estates on the basis that a statutory
or regulatory change is required to provide authority for distribution
of the trust personalty.
b. Distribution of Trust Personalty When More Than One Tribe Has
Jurisdiction
As mentioned above, AIPRA provides that if there are no other
heirs, the interests will pass to the Tribe with jurisdiction over the
trust land interests.
[[Page 58354]]
See 25 U.S.C. 2206(a)(2)(B)(v). Neither AIPRA nor the implementing
regulations specify which Tribe will receive the trust personalty if
more than one Tribe has jurisdiction over trust land interests in the
estate.
Potential Regulatory Change: To address these gaps in
AIPRA's default intestacy scheme, the Department is considering
revising 43 CFR 30.254 and adding additional sections. Specifically,
the Department is considering having these additional sections provide
clear authority for an OHA judge to order distribution of trust funds
when there are either no land interests in a decedent's estate or there
are land interests within the jurisdiction of more than one Tribe. The
rule under consideration identifies potential recipients of the trust
personalty: Close relatives who do not inherit under AIPRA as
``eligible heirs,'' followed by nieces and nephews, and then by the
Tribe where the decedent was enrolled. If a decedent does not have
close relatives, nieces or nephews, and was not enrolled in any Tribe,
then the potential recipients would include the Tribe(s) in which the
decedent's parents or grandparents were enrolled. If the decedent was
not enrolled in any Tribe, and none of the decedent's parents or
grandparents were enrolled in any Tribe, then the judge would exercise
discretion by determining the Tribe with whom decedent was most closely
affiliated. Such a determination could take into account the Tribal
enrollment or affiliation of a decedent's ancestors from whom he or she
inherited trust or restricted real property or trust personalty.
Issue 2: Overly Burdensome ``purchase at probate'' Process
AIPRA authorizes certain ``eligible purchasers'' to purchase trust
and restricted interests in a parcel of land in the decedent's estate
under certain circumstances. See 25 U.S.C. 2206(o). The regulations set
out this ``purchase at probate'' process at 43 CFR subpart G. See
Sec. Sec. 30.160 through 30.175. A number of issues have arisen in
implementing these regulations.
a. The current regulations establishing the purchase at probate
process are not in chronological order.
Potential Regulatory Change: Rewrite subpart G of the
regulations to list the purchase at probate steps in chronological
order.
b. Currently if someone seeks to purchase interests in one tract
that is included in an estate, the purchase at probate process proceeds
for the interests in that tract but the entire estate is kept open in
the meantime.
Potential Regulatory Change: Allow for final distribution
of all parts of an estate not subject to purchase at probate while the
purchase at probate process takes place.
c. The current regulations require the purchase at probate to occur
before OHA issues its final decision. This forces OHA to make
provisional determinations of heirs or devisees, which opens the
possibility of having to redo the already-lengthy purchase at probate
process in situations such as will contests or objections regarding
determinations of heirs that are made when the final decision is
issued. The problems of completing the purchase at probate process
before the heirs/devisees are determined is intensified in situations
in which the purchase may only be approved if the heirs/devisees
consent. If the preliminary determination of heirs/devisees is
incorrect, the wrong individuals have consented or refused to consent.
Potential Regulatory Change: Allow OHA to issue the final
decision to determine the heirs/devisees before beginning the purchase
at probate process.
d. The current regulations do not include a provision to seek
initial consent from heirs/devisees as to their willingness to consider
bids to purchase property interests. Instances occur in which heirs/
devisees do not indicate intent to participate in the purchase at
probate process. When initial consent is not included, the purchase at
probate process may progress for a long time before the heir/devisee's
consent is sought, thus resulting in process delays.
Potential Regulatory Change: For purchases in which
consent is required, add provisions stating that OHA will issue an
initial order to heirs/devisees to provide written notification of
their willingness to consider bids that may be made by potential
purchasers, and that if written notification is not received by a
deadline, OHA may presume the heirs/devisees do not consent to the
purchase of the property interest(s) and may deny the request to
purchase.
e. When OHA receives a request to purchase at probate, the current
regulations require OHA to notify all ``eligible purchasers.''
``Eligible purchasers'' include persons who own undivided trust or
restricted interests in the same parcel of land involved in the probate
proceeding, i.e., co-owners. For co-owners who have not submitted a
purchase request, OHA provides notice by posting in multiple places.
This posting adds significant time to the process, while resulting in
few, if any, co-owner requests to purchase. AIPRA does not require
notice in such a scenario.
Potential Regulatory Change: Revise the regulations to
require co-owner notice only to co-owners who have submitted prior
notice to the BIA that they want to receive notice of probates
involving specified allotments, and to establish that such notice will
be made by mailing rather than posting. These potential changes would
work to reserve notice to co-owners only for situations in which a co-
owner has requested to receive notice, while continuing to meet due
process requirements and reducing complexities in the probate process.
f. AIPRA prohibits approval of a purchase at probate interest for
less than fair market value, and the current probate regulations state
that market value will be determined by an appraisal or valuation
method developed by the Secretary. At this time the Department is able
to provide the fair market value of a real property interest only via
an appraisal. The Department is unable to perform appraisals for
minerals-only interests.
Potential Regulatory Change: Revise the purchase at
probate regulations to clarify that no minerals-only property may be
purchased at probate and to accurately reflect the Department's current
appraisal practice.
Issue 3: Notice to Co-Owners Who Are ``potential heirs''
Under AIPRA's intestate distribution scheme, co-owners of
allotments are potential heirs in some circumstances. For example, if a
decedent dies without any eligible person heirs as listed in AIPRA's
order of succession, and there is no Tribe with jurisdiction over the
allotment, a surviving co-owner of a trust or restricted interest in
the allotment can potentially be an ``heir'' of last resort. Allotments
often have many co-owners; some have over one thousand, for example.
The current regulations require OHA to provide all interested parties--
including co-owners--with mailed notice of probate proceedings. Mailing
notice to all co-owners who are potential heirs in a probate case makes
the process unnecessarily complex.
Potential Regulatory Change: Modify the regulations to
state that potential heirs who may inherit solely based on their status
as co-owners will not receive mailed notice of a probate proceeding,
unless they have previously filed a request for notice with BIA or OHA.
Public notice will continue to be posted.
[[Page 58355]]
Issue 4: Insufficient Trust Funds for Funeral Services
The current regulations allow whoever is responsible for making the
funeral arrangements on behalf of the decedent's family to obtain up to
$1,000 from the decedent's Individual Indian Money (IIM) account to pay
for funeral services. (See 25 CFR 15.301). This amount has repeatedly
proven to be insufficient. The current regulations further require
there to be at least $2,500 in the decedent's IIM account at the date
of death in order to request the $1,000 distribution.
Potential Regulatory Change: Allow individuals to request
up to $5,000 from the decedent's IIM account to pay for funeral
services and eliminate the requirement for a certain amount of trust
funds to be in the IIM account as of the date of death. This change
recognizes the increase in the costs of funeral services and would
ensure that family members are able to pay such costs immediately.
Issue 5: No Current Regulatory Process for Exercise of ``tribal
purchase'' Option
Aside from the ``purchase at probate'' provisions discussed above,
AIPRA also authorizes a Tribe with jurisdiction to purchase an interest
in trust or restricted land, if the owner of that interest devises it
to a non-Indian. See 25 U.S.C. 2205(c)(1)(A). No current regulations
implement this statutory Tribal purchase option. Cases in which the
Tribal purchase option is available could be processed more efficiently
if there are provisions addressing such topics as notice procedures to
a Tribe and other interested parties, timeframes that a Tribe must meet
to exercise the option, and the process by which fair market value will
be determined. Regulations would also ensure uniformity of process from
one case to the next.
Potential Regulatory Change: Add new regulations to
implement the 25 U.S.C. 2205(c)(1)(A) Tribal purchase option in an
efficient and uniform manner.
Issue 6: Cumbersome Process for Minor Estate Inventory Corrections
In the course of its probate work, BIA sometimes determines after a
probate decision has been issued that trust or restricted property
belonging to a decedent was either omitted from or incorrectly included
in the inventory of an estate. Such circumstances require an inventory
correction, so that the probate decision can be applied to the property
interest in question. The current regulations, at 43 CFR 30.126,
require OHA to issue a modification order for these inventory
corrections to occur. The regulations also require that the
modification order be appealable to the Interior Board of Indian
Appeals (IBIA). As a result, it can take significant time to make minor
estate inventory corrections to include omitted property.
Potential Regulatory Change: Revise the probate
regulations to improve probate process efficiency and reduce the amount
of time for estate inventory corrections to be made. Potential
revisions could be to authorize BIA to make minor estate inventory
corrections or to streamline the process that OHA follows before
issuing an inventory modification order. One such streamlining measure
could involve an heir or devisee being allowed to--prior to the
exercise of an IBIA appeal option--request that an OHA judge reconsider
a modification order, thus reducing the number of cases that might
result in such an IBIA appeal.
Issue 7: Unclear Judicial Authority To Access Necessary Information
In probate cases involving a challenge to a will--such as on the
basis of testamentary capacity or one's ability to make a valid will--
the presiding OHA judge may need to order medical records. Under the
current regulations, it is unclear what authority an OHA judge has to
order such information. Likewise, it is unclear under the current
regulations what authority a judge has to issue interrogatories in
cases involving will contests. (See 25 CFR 15.204 and 43 CFR 30.114).
Recipients of such orders and information requests sometimes challenge
OHA's authority and may even refuse to provide information necessary
for a probate decision to be made. This adds the time necessary to
complete the probate process and may result in a final probate decision
based on a minimally sufficient record.
Potential Regulatory Change: Add provisions explicitly
allowing the OHA judge to order medical records and vital records from
State and local entities as needed, and to issue interrogatories in
cases involving will contests.
Issue 8: Indian Status Determinations Not Necessary in Every Case
Under current probate regulations, a final probate decision must
determine the Indian status of every heir or devisee. A determination
of Indian status is often not necessary and applying the definition of
``Indian'' can be complicated.
Potential Regulatory Change: Require probate decisions to
determine the Indian status of an heir or devisee only when such a
determination is necessary; for example, the determination of Indian
status may be necessary in AIPRA cases involving a will and where the
devisee is not a lineal descendant of the decedent.
Issue 9: Increase the Scope of Opportunities to Use ``renunciation'' as
a Means for Maintaining Property Being Held in Trust
The current regulations allow an heir or devisee to renounce an
inherited or devised interest in trust or restricted property. (See 43
CFR pt. 43 supt. H). A renunciation must take place before a probate
decision is made. Once a probate decision is made, renunciation is not
allowed. The current regulations allow petitions for rehearing to be
filed within 30 days of a probate decision being made but fail to list
renunciation among the bases for which an OHA judge may grant a
rehearing.
Potential Regulatory Change: Revise the regulations to
allow for renunciation at the rehearing stage, so that the renunciation
option can be exercised to prevent property from going out of trust
even if renunciation was not sought before an initial probate decision
was made.
Issue 10: Make More Relevant the Presumption-of-Death Rule
The probate process obligates OHA--in some circumstances--to
determine whether a person is deceased. Proof of death is not always
available. To facilitate the decision-making process, the current
regulations allow OHA make a presumption of death. The current rule is
that such a presumption may be made if there has been no contact with
the absent person for the last six years, dating back from the time of
the hearing. The hearing does not always occur until well after a
probate file is sent by BIA to OHA.
Potential Regulatory Change: Revise the presumption-of-
death provisions in 43 CFR 30.124(b)(2), keeping the six-year rule but
having it date back to the last date of known contact with the absent
person. As needed for practicality, these revisions could include
exceptions and/or rules about what ``known contact'' entails and/or how
``known contact'' is shown.
Issue 11: The Requirements for Filing Petitions for Rehearing and
Reopening Need Clarification
In separate areas of the current regulations, a party may file a
petition for rehearing or a petition for reopening (see 43 CFR 30.240
and 30.125). A petition for rehearing must be filed within 30 days of
the probate decision
[[Page 58356]]
and the requirements for presenting new evidence are very specifically
laid out. Petitions for reopening may be filed much later by someone
who had the chance to participate in the initial probate proceeding but
did not do so. Time spent processing a reopening request reduces the
time available for other probate cases.
Potential Regulatory Change: Revise the current
regulations to: (1) Limit the ability of a party who did not use the
opportunity to participate in an initial probate proceeding to later
file a petition for reopening; and (2) in a rehearing and reopening
proceedings, make clear the circumstances under which new evidence may
be presented.
Issue 12: Even Small, Simple Estates Must Undergo a Probate Proceeding
Heirs and devisees often express frustration at how long it takes
the Department to process a decedent's estate. One reason that probate
takes time is that the current regulations require cases with any
amount of trust funds to be adjudicated by an OHA decision maker.
Potential Regulatory Changes: Increase the scope of
estates that are subject to OHA's summary process, which does not
require a formal hearing (see 43 CFR part 30 subpart I), and/or
determine what would be considered a small estate and, for estates
within that definition, create a streamlined distribution scheme for
such estates.
Issue 13: Current Regulations Fail To Address Implementation of the
AIPRA Provision Regarding Descent of Off-Reservation Lands
AIPRA distinctly addresses the descent of interests in trust or
restricted lands that are located outside the boundaries of an Indian
reservation and are not subject to the jurisdiction of a Tribe. See 25
U.S.C. 2206(d)(2). The current regulations fail to address
implementation of this statutory provision, however, which may be
applied inconsistently or not at all.
Potential Regulatory Changes: Address implementation of an
AIPRA provision (25 U.S.C. 2206(d)(2)) concerning off-reservation
lands. The purpose of such a change would be to ensure consistency and
transparency in OHA decisions, and to increase the public's awareness
about exceptions to the AIPRA rules that exist.
Authority
The Department is issuing this ANPRM under the authority of 5
U.S.C. 301, 25 U.S.C. 2, 9, 372, 373 and the Indian Land Consolidation
Act of 2000 (ILCA) as amended by the American Indian Probate Reform Act
of 2004 (AIPRA), 25 U.S.C. 2201 et seq.
Susan Combs,
Assistant Secretary--Policy, Management and Budget.
[FR Doc. 2019-23748 Filed 10-30-19; 8:45 am]
BILLING CODE 4334-63-P