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§ 4.281 Claims for attorney fees.

(a) Attorneys representing Indians in proceedings under these regulations may be allowed fees therefor by the administrative law judge. At the administrative law judge's discretion such fees may be chargeable against the interests of the party thus represented, or where appropriate, they may be taxed as a cost of administration. Petitions for allowance of fees shall be filed prior to the close of the last hearing and shall be supported by such proof as is required by the administrative law judge. In determining attorney fees, consideration shall 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 parties in interest.

(b) Nothing herein shall prevent 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 an attorney's fees is subject to a petition for rehearing and to an appeal.

§ 4.282 Guardians for incompetents.

Minors and other legal incompetents who are parties in interest shall be represented at all hearings by legally appointed guardians, or by guardians ad litem appointed by the administrative law judge.

TRIBAL PURCHASE OF INTERESTS UNDER SPECIAL STATUTES

SOURCE: Sections 4.300-4.308 appear at 45 FR 50331, July 29, 1980, unless otherwise noted.

§ 4.300 Authority and scope.

(a) The rules and procedures set forth in §§ 4.300 through 4.308 apply only to proceedings in Indian probate which relate to the tribal purchase of a decedent's interests in trust and restricted land as provided by:

(1) The Act of December 31, 1970 (Pub. L. 91-627; 84 Stat. 1874; 25 U.S.C. 607 (1976)), amending section 7 of the Act of August 9, 1946 (60 Stat. 968), with respect to trust or restricted land within the Yakima Reservation

or within the area ceded by the Treaty of June 9, 1855 (12 Stat. 1951);

(2) The Act of August 10, 1972 (Pub. L. 92-377; 86 Stat. 530), with respect to trust or restricted land within the Warm Springs Reservation or within the area ceded by the Treaty of June 25, 1855 (12 Stat. 37); and

(3) The Act of September 29, 1972 (Pub. L. 92-443; 86 Stat. 744), with respect to trust or restricted land within the Nez Perce Indian Reservation or within the area ceded by the Treaty of June 11, 1855 (12 Stat. 957).

(b)(1) In the exercise of probate authority, an administrative law judge shall determine: (i) The entitlement of a tribe to purchase a decedent's interests in trust or restricted land under the statutes; (ii) the entitlement of a surviving spouse to reserve a life estate in one-half of the surviving spouse's interests which have been purchased by a tribe; and (iii) the fair market value of such interests, including the value of any life estate reserved by a surviving spouse.

(2) In the determination under paragraph (b)(1) of this section of the entitlement of a tribe to purchase the interests of an heir or devisee, the issues of: (i) Enrollment or refusal of the tribe to enroll a specific individual and (ii) specification of blood quantum, where pertinent, shall be determined by the official tribal roll which shall be binding upon the administrative law judge. For good cause shown, the administrative law 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.

§ 4.301 Appraisal report.

(a) Order for appraisal; date for determining fair market value. In all probates, at the earliest possible stage of the proceeding before issuance of a probate decision, when the record reveals to the Superintendent: (1) That the decedent owned interests in land located on one or more of those reservations designated in § 4.300 and (2) that any one or more of the probable heirs or devisees, who may become a

distributee of such interests upon completion of the probate proceeding, is not enrolled in or does not have the required blood quantum in the tribe of the reservation where the land is located to hold such interests against a claim thereto made by the tribe, the Superintendent shall order an appraisal of the decedent's interests. If there is a surviving spouse whose interests may be subject to the tribal option, the appraisal shall include the value of a life estate based on the life of the surviving spouse in one half of such interests. The appraisal shall be made on the basis of the fair market value of the property, including fixed improvements, as of the date of decedent's death.

(b) Who may conduct the appraisal; submission of the appraisal report to the administrative law judge. Qualified appraisers shall appraise the property and submit an appraisal with a summary thereof to the Superintendent. The Superintendent shall file the appraisal report with the administrative law judge and retain a copy in the Superintendent's office. Interested parties may examine and copy, at their expense, the appraisal report at the office of the Superintendent or administrative law judge.

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

(a) Conclusion of probate; findings in the probate decision. When a decedent is shown to have owned land interests in any one or more of the reservations mentioned in the statutes enumerated in § 4.300, the probate proceeding relative to the determination of heirs, approval or disapproval of a will, and the claims of creditors shall first be concluded as final for the Department in accordance with §§ 4.200-4.296. This decision will be referred to herein as the "probate decision." At the probate hearing a finding shall be made on the record showing those interests in land, if any, which are subject to the tribal option. The finding shall be reduced to writing in the probate decision setting forth the apparent rights of the tribe as against affected heirs or devisees 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. If the finding is that there are no interests subject to the tribal option, the decision shall so state. A copy of the probate decision, to which shall be attached a copy of the appraisal summary, shall be distributed to all parties in interest in accordance with §§ 4.201 and 4.240.

(b) Tribal exercise of statutory option. A tribe may purchase all or a part of the available interests specified in the probate decision within 60 days from the date of the probate decision unless a petition for rehearing or a demand for hearing has been filed in accordance with § 4.304 or 4.305. 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. The tribe shall file a written notce of purchase with the Superintendent, together with the tribe's certification that copies thereof have been mailed on the same date to the administrative law judge and to the affected heirs or devisees.

Upon failure to timely file a notice of purchase, the right to distribution of all unclaimed interests shall accrue to the heirs or devisees.

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

When the heir or devisee 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 shall 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 and the tribe. Failure to timely file a notice to reserve a life estate shall constitute a waiver thereof.

§ 4.304 Rehearing.

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

§ 4.305 Hearing.

(a) Demand for hearing. Any party in interest 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 appraisal report may, within 60 days from the date of the probate decision or 60 days from the date of the decision on rehearing, whichever is applicable, file with the administrative law judge a written demand for hearing, together with a certification that copies thereof have been mailed on the same date to the Superintendent and to each party in interest; provided, however, that an aggrieved party shall have at least 20 days from the date the tribe exercises its option to purchase available interests to file such a demand. The demand must state specifically and concisely the grounds upon which it is based.

(b) Notice; burden of proof. The administrative law judge shall, upon receipt of a demand for hearing, set a time and place therefor and shall mail notice thereof to all parties in interest not less than 30 days in advance; provided, however, that such date shall be set after the expiration of the 60-day period fixed for the filing of the demand for hearing as provided in § 4.305(a). 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 appraisal report shall have the burden of proving his or her position.

(c) Decision after hearing; appeal. Upon conclusion of the hearing, the administrative law judge shall issue a decision which shall determine all of the issues including, but not limited to, a judgment establishing the fair market value of the interests purchased by the tribe, including any adjustment thereof made necessary by the surviving spouse's decision to reserve a life estate in one-half of the interests. The decision shall specify the

right of appeal to the Board of Indian Appeals within 60 days from the date of the decision in accordance with §§ 4.291-4.297. The administrative law judge shall lodge the complete record relating to the demand for hearing with the title plant as provided in § 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 party in interest.

§ 4.306 Time for payment.

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

§ 4.307 Title.

Upon payment by the tribe of the interests purchased, the Superintendent shall issue a certificate to the administrative law judge that this has been done and file therewith such documents in support thereof as the administrative law judge may require. The administrative law judge shall then issue an order that the United States holds title to such interests in trust for the tribe, lodge the complete record, including the decision, with the title plant as provided in § 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 party in interest.

§ 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 § 4.307, all income received or accrued from the land interests purchased by the tribe shall be credited to the estate.

CROSS REFERENCE: See Part 2, Title 25 of the Code of Federal Regulations, for procedures for appeals to Area Directors and to the Commissioner of the Bureau of Indian Affairs.

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GENERAL RULES APPLICABLE TO PROCEEDINGS ON APPEAL BEFORE THE INTERIOR BOARD OF INDIAN APPEALS

AUTHORITY: Secs. 1, 2, 36 Stat. 855, as amended, sec. 1, 38 Stat. 586, 42 Stat. 1185, as amended, secs. 1, 2, 56 Stat. 1021, 1022; R.S. 463, 465; 5 U.S.C. 301; 25 U.S.C. secs. 2, 9, 372, 373, 374, 373a, 373b.

SOURCE: Sections 4.310-4.317 appear at 46 FR 7335, Jan. 23, 1981, unless otherwise noted.

NOTE: Hearings rules codified at 43 CFR 4.200-4.282 and to be codified as §§ 4.300-4.308 of 43 CFR (45 FR 50329, July 29, 1980) appear between the foregoing heading and the rules governing appeals to IBIA, which begin with § 4.310.

§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 the date of mailing or the date of personal delivery.

(b) Service. Notices of appeal and pleadings shall be served on all parties in interest in any proceeding before the Interior Board of Indian Appeals by the party filing the notice or pleading with the Board. Service shall be accomplished upon personal delivery or mailing.

(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, 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. The last day of the period so computed is to be included, unless it, is a Saturday, Sunday, Federal legal holiday, or other nonbusiness day, in which event the period runs until the end of the next day which is not a Saturday, Sunday, Federal legal holiday, or other nonbusiness day. When the time prescribed or allowed is 7 days or less, intermediate Saturdays, Sundays, Federal legal holidays, and other nonbusiness days shall be excluded in the computation.

(d) Extensions of time. (1) The time for filing or serving any document except a notice of appeal may be extended by the Board.

(2) A request to the Board for an extension of time must be filed within the time originally allowed for filing.

(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.

§ 4.311 Briefs on appeal.

(a) The appellant may file an opening brief within 30 days after receipt of the notice of docketing. Appellant shall serve copies of the opening brief filed upon all interested parties or counsel and file a certificate with the Board showing service upon the named parties. Opposing parties or counsel shall have 30 days from receipt of appellant's brief to file answer briefs, copies of which shall be served upon the appellant or counsel and all other parties in interest. A certificate showing service of the answer brief upon all parties or counsel shall be attached to the answer filed with the Board.

(b) 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 shall 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) The Bureau of Indian Affairs shall be considered an interested party in any proceeding before the Board. The Board may request that the Bureau submit a brief in any case before the Board.

§ 4.312 Decisions.

Decisions of the Board will be made in writing. Distribution of decisions shall be made by the Board to all parties concerned. Unless otherwise stated in the decision, rulings by the Board which are final for the Department shall be given immediate effect.

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(a) Any interested person or Indian tribe desiring to intervene or to join other parties or to appear as amicus curiae or to obtain an order in an appeal before the Board shall apply in writing to the Board stating the grounds for the action sought. Permission to intervene, to join parties, to appear, or for other relief, may be granted for purposes and subject to limitations established by the Board. This section shall be liberally construed.

(b) Motions to intervene, to appear by amicus curiae brief or to join additional parties to an appeal pending before the Board shall be served in the same manner as appeal briefs.

§ 4.314 Exhaustion of administrative remedies.

(a) No decision of an administrative law judge which at the time of its rendition is subject to appeal to the Board shall be considered final so as to constitute agency action subject to judicial review under 5 U.S.C. 704, unless made effective pending 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.

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(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 receipt of the decision and shall 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 shall not stay the effect of any decision or order and shall not affect the finality of any decision or order for purposes of judicial review, unless so ordered by the Board.

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(a) Inquiries about cases. All inquiries with respect to any matter pending before the Board shall be made to the Chief Administrative Judge of the Board or to the member of the Board assigned the matter.

(b) Ex parte communications. There shall be no communication between any party and a member of the Board concerning the merits of an appeal unless such communication, if written, is also furnished to the other party, or, if oral, is made in the presence of the other party. The Board shall refuse to receive, except as part of the record on appeal, information having any bearing upon an appeal from persons who do not represent a party in the appeal, but who have an interest in the decision to be rendered.

(c) Disqualification. A Board member may withdraw from a case in accordance with standards found in the recognized canons of judicial ethics if the member deems such action appropriate. If, prior to a decision of the Board, a party files an affidavit of personal bias or disqualification with substantiating facts, and the Board member concerned does not withdraw, the Director of the Office of Hearings and Appeals shall determine the matter of disqualification.

APPEALS TO THE BOARD OF INDIAN
APPEALS IN PROBATE MATTERS

AUTHORITY: Secs. 1, 2, 36 Stat. 855, as amended, sec. 1, 38 Stat. 586, 42 Stat. 1185, as amended, secs. 1, 2, 56 Stat. 1021, 1022; R.S. 463, 465; 5 U.S.C. 301; 25 U.S.C. secs. 2, 9, 372, 373, 374, 373a, 373b.

SOURCE: Sections 4.320-4.323 appear at 46 FR 7336, Jan. 23, 1981, unless otherwise noted.

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