[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