The Department is committed to fully explaining both the purpose and intended effects of these regulations in this preamble. More detailed explanations of each part are provided below, followed by summaries of comments received during tribal consultations on the preliminary drafts of these regulations. The Department welcomes any questions or comments requesting clarification of these parts, as well as additional comments. Additionally, upon finalization of any of these regulations, the Department plans to develop training and other explanatory materials, where appropriate, to facilitate transparency in implementation of these regulations.

IV. PartbyPart Analysis

The following sections provide a description of the amendments with respect to each CFR part and provide distribution tables listing what current CFR sections are proposed for change, the new (i.e., proposed) CFR section, and a description of the proposed changes. Because this proposed rule incorporates changes made to the preliminary drafts, which were distributed to tribes in December 2005, the following part bypart analysis includes a discussion of major changes made to each preliminary draft of the CFR part in response to comments.

A. 25 CFR Part 15

The purpose of this part is to describe the authorities, policies and procedures the BIA (or tribe that has contracted or compacted to fulfill probate functions) uses to prepare a probate file for an Indian decedent's trust estate, except for restricted land derived from allotments made to members of the Five Civilized Tribes (Cherokee, Choctaw, Chickasaw, Creek and Seminole) in Oklahoma.

Amendments to this part revise several subsections to ensure that the probate file delivered to OHA for adjudication is as complete as possible. By requiring a certification by BIA that they have examined certain sources of information and that the file is as complete as possible based on those sources of information, the amendments will prevent multiple transfers of the probate file between BIA and OHA, facilitating the process. Additional changes to the records requirements, such as deleting the requirement for a birth certificate, are also intended to facilitate the probate process.

The amendments ensure that information is included in the probate file to determine whether heirs and devisees meet the AIPRA definition of ``Indian.'' The amendments also incorporate definitions regarding AIPRA's new methods for consolidating interests at probate:

Amendments to this part ensure that the probate file contains information necessary for implementation of statutory solutions to fractionation set out in 43 CFR part 4, which addresses OHA probate hearings. Part 15 prescribes what must be included in a probate package and how it will be compiled.
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Changes From Preliminary Draft

Several tribal commenters questioned why 25 CFR part 15 and 43 CFR part 4, which both address the probate process, are in separate CFR titles. The Department has determined that because these two parts address different agencies25 CFR part 15 addresses BIA preparation of the probate file, and 43 CFR part 4 addresses adjudication of the probate file once OHA receives it from BIAthese parts are best kept in their respective titles.

Several commenters suggested that the definitions in both 25 CFR part 15 and 43 CFR part 4 should track the definitions as set out in ILCA, as amended by AIPRA. The Department has reviewed the regulatory definitions, and amended them as appropriate to ensure that they are consistent with AIPRA and with 43 CFR parts 4, 30.

The Department examined and changed terms, as appropriate, to ensure consistency with definition of terms in 43 CFR parts 4, 30. The Department also amended other terminology as a result of issues raised by tribal commenters: for example, it changed ``trust financial assets'' and ``cash assets'' to ``trust personalty'' to encompass both cash and securities, and it changed ``beneficiaries'' to ``devisees,'' which is a more precise term including only those who receive under a will. In section 15.8, the Department clarified what is meant by a ``selfproved will.''

In response to tribal comments, the Department also significantly amended section 15.14. In the preliminary draft, this section had provided that, pending probate, the Secretary could take custody and control of the estate and take any action he or she determined to be necessary for the benefit of the estate, including sale of the land. The version of this section being proposed today instead provides limited emergency actions that BIA may take when assets in an estate may be significantly diminished or destroyed while the probate is pending. Each of the emergency actions require a request to or hearing before OHA, so no unilateral action may be taken to sell land pending probate under this provision.

At least one tribal commenter objected to the last provision in section 15.106 of the preliminary draft, allowing the Secretary to request any additional information in support of the probate file. The Department has deleted the provision allowing the Secretary to require additional information in support of the probate file.

The Department also clarified when claims against an estate may be filed and the deadline for filing such claims in section 15.202. Distribution Table25 CFR Part 15

The following distribution table indicates where each of the current regulatory sections in 25 CFR part 15 is located in the proposed 25 CFR part 15.
New
Current citation citation Title Remarks 15.1................................. 15.1 What is the purpose of this No change. part?
15.2................................. 15.2 What terms do I need to know? Additional definitions. 15.3 Who can make a will disposing New section. of trust or restricted land or trust personalty? 15.4 What are the requirements for New section. my will? 15.5 Can I revoke my will? New section. 15.6 Can my will be deemed revoked New section. by the operation of the law of any state? 15.7 What is a selfproved will? New section. 15.8 Can I make my will, codicil, New section. or revocation selfproved? 15.9 Do affidavits for my self New section. proved will, codicil, or revocation have to be in a certain format? 15.3................................. 15.10 Will the Secretary probate Clarifies that the Secretary all the land or assets in an will probate only the trust estate? or restricted property in an estate. 15.4................................. 15.11 How does the probate process Administrative changes. work?
15.12 What happens if assets in a New section. trust estate may be diminished or destroyed while the probate is pending? 15.101............................... 15.103 How do I begin the probate Clarifies whom to contact at process? BIA to inform of a death. 15.104 Does BIA need a death Clarifies that a death certificate to prepare a certificate should be probate file? provided and lists information and documents that must be provided if no death certificate is available. 15.102............................... 15.102 Who may notify BIA of a Plain language. death? 15.103............................... 15.101 When should I notify BIA of a Plain language. death? 15.104, 15.105....................... 15.105 What other documents does BIA Clarifies that certain need to prepare a probate documents may come from an file? authority other than a court. Adds requirement for: orders requiring payment of spousal support; identification of person or entity in whose favor an interest is renounced; court judgments regarding creditor claims; and place of enrollment and tribal enrollment or census number of the decedent and potential heirs and beneficiaries. Deletes requirement for birth certificate. 15.106............................... 15.201 Can I get funds from the Plain language. decedent's IIM account for funeral services? 15.107............................... 15.107 Who prepares a probate file? Incorporates new ``probate staff'' definition. 15.108............................... 15.108 If the decedent was not an Redesignated. Plain language. enrolled member of a tribe or was a member of more than one tribe, who prepares the probate file? [[Page 45178]]
15.106 Can a probate case be opened New section. when an owner of an interest has been absent? 15.201............................... 15.301 What will BIA do with the Clarifies that BIA will also documents that I provide? examine other documents and information (beyond those provided) to prepare a complete probate file and will transfer the probate file to OHA. 15.202............................... 15.202 If the decedent owed me Adds requirements to provide money, how do I file a claim certain additional against the estate? information in support of claim. Changes deadline for filing a claim to the conclusion of the first hearing rather than 60 days of verification of death. 15.203............................... 15.302 What items must BIA include Clarifies what the certified in the probate file? inventory of trust or restricted real property should contain. Adds requirements for supporting documents. 15.303 When is a probate file New section. complete? 15.301............................... 15.401 What happens after BIA Redesignated. Deletes prepares the probate file? notification to interested parties. 15.302............................... 15.402 What happens after the Adds provisions describing probate file is referred to how BIA will handle claims OHA? it receives after it refers the probate file to OHA. 15.303............................... 15.403 What happens after the Establishes a 30day time probate decision is made? period to file a written request for de novo review, a request for rehearing with the OHA deciding official, or an appeal. Establishes that BIA will not pay claims, transfer title, or distribute assets pending a de novo review, rehearing, or appeal. 15.401............................... 15.501 How can I find out the status Clarifies that interested of a probate? parties may contact the BIA agency or regional office. 15.402............................... 15.502 Who owns the records Clarifies that records made associated with this part? by or on behalf of the United States are owned by the United States. 15.403............................... 15.503 How must records associated Redesignated. Plain language. with this part be preserved? 15.504 Who may inspect these Redesignated. Plain language. records? 15.505 What information must tribes Establishes that tribes must provide BIA to complete the provide certain information probate file? when necessary to complete a probate file. 15.506 How does the Paperwork New section. Reduction Act affect this part?

B. 25 CFR Part 18 [NEW]Tribal Probate Codes

This new CFR part addresses the process for obtaining Secretarial approval of a tribal probate code and lists factors the Secretary will consider in reviewing the tribal probate code for approval. While tribes have had the authority to adopt their own tribal probate codes governing descent and distribution of trust and restricted lands located within the tribes' respective reservations or otherwise subject to the tribes' jurisdiction, part 18 clarifies that a tribe must obtain Secretarial approval of the code. This part lists the factors the Secretary will consider in reviewing a tribal probate code and establishes when an approved code, repeal, or amendment becomes effective. Upon approval, this part requires the tribe to notify tribal members of the tribal probate code.

Changes From Preliminary Draft

The Department made several plain language changes to the preliminary draft, which has resulted in combining certain sections and rearranging the sections to some degree. The Department added a new subsection (b) to section 18.1 to clarify that a tribal probate code may provide for a single heir rule that differs from the one provided in AIPRA.

The Department also clarified section 18.8(b) (section 18.9 in the preliminary draft) to provide that a tribal probate code or amendment will be applied to the estates of decedents who die on or after the effective date, rather than the date of approval, of the tribal probate code or amendment.

Finally, tribal commenters objected to section 18.12 of the preliminary draft, which provided how tribes should notify their members of a tribal probate code or amendment, as an inappropriate incursion into tribal sovereignty. The Department has deleted this section in its entirety.

Note: A distribution table is not included here because these provisions are entirely new.

C. 25 CFR Part 150Indian Land Record of Title

The LTRO determines, maintains, and certifies the title status of Indian land and provides various land title products and services to individual Indians, tribes, and other members of the public for land held in trust or restricted status by the United States. Trust status means that title is held by the United States in trust for the benefit of an individual Indian or tribe. Restricted status means ownership of the property is subject to Federal restrictions against alienation and/ or encumbrance.

The proposed rule replaces 25 CFR part 150, Land Records and Title Documents, in its entirety, to provide clarification of LTRO's procedures and increase the ability of the LTRO to provide services and products to Indians, tribes, and the public comparable to those provided by state and local land records offices. The changes are described subpart by subpart, below.

Subpart A of the proposed rule, Purpose, Definitions, and Public Information, clarifies that the
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Department will provide access to the information in the Indian Land Record of Title to individual Indians, tribes, and the public, except in those instances where access would violate law or policy restricting access to such records. The definition of ``Indian land'' is clarified to include only lands in trust or restricted status and Federal governmentowned land that is under the jurisdiction of the BIA, and not land held in fee by Indians or fee land subject to the rights, occupancy, and use of Indians.

Subpart B of the proposed rule, The Indian Land Record of Title Designation as the Official Record of Indian Land, designates the Indian Land Record of Title as the official record of title instruments affecting Indian land. The proposed rule clarifies that constructive notice of the existence of the title instrument is provided by recording the instrument in the Indian Land Record of Title. Recording instruments with other Federal or state offices does not provide constructive notice with regard to Indian land.

Subpart C of the proposed rule, LTRO Procedures and Requirements to Record Instruments in the Indian Land Record of Title, designates the LTRO as the organization within the Federal government that has the responsibility to maintain the Indian Land Record of Title. This subpart describes the LTRO process for receiving and recording title and the process for correcting an error or omission in an LTRO product or service.

Subpart D of the proposed rule, Services and Products of the LTRO, describes the types of services and products offered by the LTRO. Subpart D also proposes charging fees to certain parties for the services and products provided by LTRO. The proposed fees implement the authority contained in 25 U.S.C. 413 and address a Congressional directive, in 31 U.S.C. 9701, for agencies to begin charging fees that are fair and reasonable based upon the value of the service provided by the Federal office. Under 25 U.S.C. 14b, the Secretary may order that such funds be directed to the appropriation account for the LTRO. A fee schedule will be published as a notice separate from this proposed rule. The proposed rule specifies exceptions to the fee.

These proposed provisions will provide a greater benefit to individual Indians, tribes, and the public through clarification of LTRO procedures and will improve LTRO's ability to serve beneficiaries. Changes From Preliminary Draft

Since distribution of the preliminary draft, the Department made several changes to part 150. For example, the Department added cross references to 43 CFR part 30 in proposed sections 150.206 and 150.207, relating to corrections of final probate records. The proposed part 150 also moves two sections regarding how to notify the LTRO of an error or omission in a service or product from subpart D to subpart C, for clarity. (See proposed section 150.208). The Department deleted the section in the preliminary draft, ``What certified products does the LTRO produce,'' and added the section, ``What services and products may I order from the LTRO.'' Additional changes and issues are discussed below.

Terminology: The Department added language to clarify several definitions, including ``interest,'' ``Land Titles and Records Office,'' ``title,'' and ``title instrument.'' The Department also rewrote the definition for ``tribe'' to be consistent with existing regulatory definitions for this term.

Throughout the rule, the Department has modified the terminology to clarify that the rights of the individual beneficiary and tribe relate to an interest in trust (see also 25 CFR part 179).

Effect on Tribes that Compact or Contract LTRO Functions: Several tribal commenters requested clarification on how this rule affects tribes that perform LTRO functions under a contract or compact. Records maintained by tribes under such a contract or compact are part of the Indian Land Record of Title and must be maintained under the same standards and policies. As such, the regulation includes compact and contract tribes under the definition of the ``Land Titles and Records Office'' for grammatical and textual convenience purposes. The inclusion of compact and contract tribes under this definition is not intended to reflect a limitation on the sovereignty of these tribes. Certain functions performed by the LTRO are inherently Federal functions and can only be performed by a government agency. The inclusion of the compact and contract tribes in this definition is not intended to authorize any such tribe to perform any inherently Federal function.

Access to the Indian Land Record of Title: Several Indian commenters raised the issue of access to LTRO information. Specifically, these commenters pointed out that they are being denied access to LTRO information, sometimes under the auspices of the Privacy Act. The rule clarifies that the Indian Land Record of Title is a public record but that access is subject to the Privacy Act, Freedom of Information Act, and other law or policy restricting access. In some instances, portions of a copy of the title instruments must be redacted under the Privacy Act to eliminate personal information not otherwise included in the Indian Land Record of Title. Additionally, the Department may restrict access to reports prepared for the Secretary. The LTRO performs functions other than entering information into the Indian Land Record of Title and providing copies of maps and title instrumentsthe LTRO also takes the information from the record, reviews and examines and draws conclusions about it in preparation of a report. Where the LTRO prepares a report for the benefit of the Secretary, the Secretary has the discretion to restrict access to the report. For example, the public may not obtain a copy of the Probate Inventory Report until OHA opens the probate case. While access to the Indian Land Record of Title may be restricted by the Freedom of Information Act, Privacy Act, or other law or policy, the Department believes that in most cases, neither law or policy will restrict access to these records by individual Indians or tribes. Generally, information included in the Indian Land Record of Title will be available to the public without restriction. The Department has also clarified that owners of an interest in trust or restricted land within the same reservation, the tribe or any person that is leasing, using, or consolidating, or is applying to lease, use, or consolidate, such trust or restricted land or the interest in trust or restricted lands may obtain the following information without regard to the Privacy Act and any exemption contained in the Freedom of Information Act: The names, mailing addresses, information on the location of the parcel, and percentage of the parcel owned by each individual.

Who Approves Title Instruments: The Department has deleted as unnecessary the section regarding who the Federal officials are that approve title instruments.

Fees: Based on input received on the preliminary drafts, the Department recognizes that there is strong opposition to requiring Indians and tribes to pay for LTRO services and products. Several tribal commenters also expressed a preference for charging fees exclusively to nonIndians because they believe that providing LTRO products and services to nonIndians without charge burdens the LTRO and diverts monies from other Indian and tribal programs. The Department welcomes continued feedback on the
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proposal for charging fees for LTRO products and services. The Department will continue to review ways to maximize the efficiency and effectiveness of the products and services provided by the LTRO and consider whether charging fees can assist with this effort. The Department has removed the fee schedule from the text of the regulation and will publish it in a separate notice. This will allow the Department to revise the fees without having to amend the rule.

LTRO Response Time: During tribal consultations, several tribal commenters expressed their frustration at what they characterized as the slowness of the LTRO in responding to requests to provide services and products. The Department is currently undergoing implementation of a technological system that will provide a centralized database of the Indian Land Record of Title. It is the Department's belief that this system will increase the LTRO's ability to respond to requests for products and services in a more timely manner. Several tribal commenters suggested imposing timelines on the LTRO to respond to requests. Due to the complexity and variety of title instruments and reports generated from the information in the Indian Land Record of Title, the Department is unable to establish a baseline time period. Additionally, the Department believes that establishing time frames within this regulation would limit the flexibility to amend those time frames to reflect changes in processes.

Distribution Table25 CFR Part 150

The following distribution table indicates where each of the current regulatory sections in 25 CFR part 150 is located in the proposed 25 CFR part 150.
Current citation New citation Title Remarks 150.1............................ 150.1 What is the purpose of Clarifies purpose by this part? expanding on the services and products LTRO provides. 150.2............................ 150.2 What terms do I need to Adds several definitions know? for clarification. 150.4 Do I have to be an Indian New section. or a tribe to obtain products or services from the Lands Titles and Records Office? 150.101 Must all title Designates the Indian instruments affecting Land Record of title as Indian land be recorded the official record of in the Indian Land title instruments Record of Title? affecting Indian land. Clarifies that recording with the Indian Land Record of Title serves as constructive notice that the title instrument exists. 150.102 Do I have to check with Clarifies that the Indian any other governmental Record of Land Title is office to find title the source of all instruments to Indian recorded instruments. land? 150.3............................ 150.201 Who maintains the Indian Establishes the LTRO as Land Record of Title? the office responsible for maintaining the Indian Land Record of Title. 150.4............................ 150.202 Where is the LTRO Indicates that the LTRO located? has locations throughout the United States, and that Bureau offices maintain contact information. 150.5............................ ....................... ......................... Deleted. 150.6............................ 150.203 Who submits the title Clarifies that BIA and instruments for other government offices recording? may submit title documents for recording. Deletes specific reference to the Administrative Law Judge submitting probate documents. 150.204 What does the LTRO do Restates the steps LTRO with the instruments takes when it receives that it receives? documents. 150.205 What are the minimum Clarifies requirements requirements for for recording. recording a title instrument? 150.7............................ 150.206 What if the LTRO Specifies LTRO procedures discovers a defect or to address defects or error in a document? errors discovered after recording. 150.207 What if a defect or error Restates requirement for in a final probate LTRO notification to record cannot be deciding official for corrected?. nonclerical errors in probate records. Establishes that the corrected document will be filed in the Indian Land Record of Title. Deletes reference to ``Superintendent'' and Administrative Law Judges. 150.208 How do I correct an error New section. or omission in a title instrument or LTRO product or service? 150.209 What instruments qualify New section. for recording in with the LTRO? 150.210 Does the LTRO maintain New section. the original title instruments? 150.211 May I obtain a copy of New section. the title instrument from the LTRO? 150.301 What services and New section. products may I order from the LTRO? 150.8............................ 150.302 How do I order services Discusses how to order and products from the any of LTRO's services LTRO? and products. 150.303 Does BIA charge fees for New section. any of the services provided by, or products produced by, the LTRO? 150.304 What will the LTRO do if New section. the instrument contains information that is privileged or protected? [[Page 45181]]
150.305 How does the Paperwork New section. Reduction Act affect this part? 150.9............................ ....................... ......................... Deleted. 150.10........................... 150.212 Is there any benefit of Restates that a certified obtaining a certified copy can be used in copy of the title? place of an original in court or elsewhere. 150.11........................... 150.3 When can I see land and Clarifies Department title information from policy to allow public the Indian Land Record access to the Indian of Title? Land Record of Title. Deletes provision regarding nondisclosure of monetary consideration and provision. D. 25 CFR Part 152Conveyances

This part establishes the authorities, policy, and procedures governing the conveyance of trust or restricted land. Amendments reorganize this part to clarify the different procedures and requirements applicable to each type of conveyance. The reorganized sections incorporate statutory solutions aimed at reducing fractionation of interests. One such solution, consolidation by sale, is newly established by AIPRA. Consolidation by sale allows one or more eligible bidders to consolidate highly fractionated land by buying the highly fractionated interests at fair market value through a sale conducted by the Secretary. The amendments also:

The reorganization divides this part into various subparts. Proposed subpart A, General Provisions, provides relevant definitions, describes to whom the Secretary will provide ownership information related to conveyance in this part, and establishes the scope of the regulations.

Subpart B, Sales and Exchanges of Tribal Trust or Restricted Land, addresses sales and exchanges of tribal land pursuant to an approved tribal consolidation plan and certain exchanges of tribal land. This subpart describes what a tribal consolidation plan is, how to obtain approval of such a plan, and how to obtain approval of a sale or exchange in the absence of tribal consolidation plan.

Subpart C, Negotiated Sales, Gifts, and Exchanges of Individually Owned Lands, addresses conveyances of individually owned trust or restricted lands. This subpart provides for a tribal option to purchase any trust or restricted interests proposed for sale, gift, or exchange to unrestricted fee status.

Subpart D, Tribal Parcel Purchase, allows tribes to purchase tracts of trust or restricted lands where the tribe either owns at least 50% of the undivided interests in the tract or has obtained the consent of the coowners of at least 50% of the undivided interests in the tract, subject to the right of an individual owner in possession of the tract to preempt the purchase.

Subpart E, Consolidation by Sale of Highly Fractionated Parcels, incorporates the new consolidation mechanism authorized by AIPRA. Consolidation by sale allows eligible bidders to consolidate interests in highly fractionated parcels where certain consents are obtained. This subpart also provides the procedures for conducting the sale by public auction or sealed bid. There is an ``Application for Consolidation by Sale'' form associated with this subpart. To obtain a copy of the information collection request submission to OMB or a copy of the form, send your request to the address related to information collections listed in ADDRESSES.

Subpart F, Partitions in Kind, authorizes the Secretary to subdivide trust and restricted land with multiple owners into smaller tracts in which the interests of the owners are unified or consolidated. This subpart allows any owner of a fractionated interest to apply to the Secretary for partition.

Subpart G, Mortgages and Deeds of Trust, allows the Secretary to approve mortgages or deeds of trust encumbering individually owned land under certain circumstances.

Much of the current regulatory language is redesignated into subpart H, Patents in Fee, Certificates of Competency, and Orders Removing Restrictions, and subpart I, Special Provisions applicable to Osage and the Five Civilized Tribes.

Changes From Preliminary Draft

The Department made several changes to the preliminary draft of 25 CFR part 152. Many of the changes are intended to clarify and make terminology consistent.

Definitions: The Department deleted the definitions for ``competent'' and ``contiguous'' and added definitions for ``fair market value,'' ``family farm,'' and ``owner(s).'' The Department revised the definition for ``Indian.''

Land Consolidation Plans: The preliminary draft had included a section stating that a tribal land consolidation plan may identify for purchase only lands contiguous to the reservation or otherwise subject to tribal jurisdiction. Several tribal commenters objected to the provision stating that the tribal land consolidation plan may identify for purchase only those lands that are located within or contiguous to the tribe's reservation boundaries, or otherwise subject to tribal jurisdiction. One tribal commenter stated that because it does not have fixed exterior reservation boundaries, this provision would prevent it from acquiring other lands which are in the vicinity of its separate trust parcels, but which are not within or contiguous to that tribe's ``reservation boundaries.'' A few tribal commenters stated that this limitation is substantive and is not contained in ILCA section 2203, and therefore should not be imposed by regulation. Another tribal commenter stated that this severely limits the unrestricted fee lands the tribe can purchase. The Department has deleted this restriction. Additionally, the Department has deleted the definition of ``contiguous'' since this deleted provision was the only appearance of the term ``contiguous'' in the regulation.

Several tribal commenters also noted that the tribal land consolidation plan conditions effectively require tribes to pre identify every transaction to be carried out under the planwhether for sale, purchase, or exchange. These commenters noted that this requirement
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would cause the tribe to submit new plans or plan amendments for every such transaction. These commenters also asserted that this requirement will result in significant price inflation

FOR FURTHER INFORMATION CONTACT

Michele Singer, Counselor to the Assistant SecretaryIndian Affairs, Department of the Interior, Bureau of Indian Affairs, 1849 C Street NW., Mail Stop 4141, Washington, DC 20240, telephone (202) 2734680.