U.S. Geological Survey, or the Director, Bureau of Land Management, or the subject matter of the appeal involves mineral activities on the Outer Continental Shelf, Address: Associate, Regional or Field Associate Solicitor, Division of Energy and Regional Solicitor, Southeast Region, U.S. Dept. of the Interior, 75 Spring Street, S.W., Suite 1328, Atlanta, GA 30303-Kentucky, Tennessee, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Puerto Rico and the Virgin Islands. 80225-Colorado, Regional Solicitor, Rocky Mountain Region, Regional Solicitor, Pacific Northwest Field Solicitor, U.S. Dept. of the Interior, Box 020, Fed. Bldg. & Courthouse 550 West Fort St., Boise, ID 83724-Idaho. Field Solicitor, U.S. Dept. of the Interior, P.O. Box 1042, Santa Fe, NM 87501-Oklahoma, Texas, New Mexico, Arkansas and Louisiana. Regional Solicitor, Alaska Region, U.S. Dept. of the Interior, 510 L Street, Suite 408, Anchorage, AK 99501-Alaska. and each adverse party named in the decision appealed from, in the manner prescribed in § 4.401(c), not later than 15 days after filing the document. Failure to serve within the time required will subject the appeal to sum If any party served with a notice of appeal wishes to participate in the proceedings on appeal, he must file an answer within 30 days after service on him of the notice of appeal or statement of reasons where such statement was not included in the notice of appeal. If additional reasons, written arguments, or briefs are filed by the appellant, the adverse party shall have 30 days after service thereof on him within which to answer them. The answer must state the reasons why the answerer thinks the appeal should not be sustained. Answers must be filed with the Board (address: Board of Land Appeals, Office of Hearings and Appeals, 4015 Wilson Boulevard, Arlington, VA 22203) and must be served on the appellant, in the manner prescribed in § 4.401(c), not later than 15 days thereafter. Proof of such service as required by § 4.401(c), must be filed with the Board (see address above) within 15 days after service. Failure to answer will not result in a default. If an answer is not filed and served within the time required, it may be disregarded in deciding the appeal, unless the delay in filing is waived as provided in § 4.401(a). ACTIONS BY BOARD OF LAND APPEALS § 4.415 Request for hearings on appeals involving questions of fact. Either an appellant or an adverse party may, if he desires a hearing to present evidence on an issue of fact, request that the case be assigned to an administrative law judge for such a hearing. Such a request must be made in writing and filed with the Board within 30 days after answer is due and a copy of the request should be served on the opposing party in the case. The allowance of a request for hearing is may be presented in the manner set forth in paragraph (b) of this section or by oral evidence at the hearing where the claimant shall be subject to examination under oath relative thereto. (d) Claims for care may not be allowed except upon clear and convincing evidence that the care was given on a promise of compensation and that compensation was expected. (e) A claim, whether that of an Indian or non-Indian, based on a written or oral contract, express or implied, where the claim for relief has existed for such a period as to be barred by the State laws at date of decedent's death, cannot be allowed. (f) Claims sounding in tort not reduced to judgment in a court of competent jurisdiction, and other unliquidated claims not properly within the jurisdiction of a probate forum, may be barred from consideration by an administrative law judge's interim order. (g) Claims of a State or any of its political subdivisions on account of social security or old-age assistance payments shall not be allowed. [36 FR 7186, Apr. 15, 1971, as amended at 36 FR 24813, Dec. 23, 1971] § 4.251 Priority of claims. After allowance of the costs of administration, including the probate fee, claims shall be allowed: (a) Priority in payment shall be allowed in the following order except as otherwise provided in paragraph (b) of this section: (1) Claims for expenses for last illness not in excess of $500, and for funeral expenses not in excess of $500; (2) Claims of unsecured indebtedness to the United States or any of its agencies; (3) Claims of unsecured indebtedness to a Tribe or to any of its subsidiary organizations; (4) Claims of general creditors, including that portion of expenses of last illness not previously authorized in excess of $500 and that portion of funeral charges not previously authorized in excess of $500. (b) The preference of the probate fee and of other claims may be deferred, in the discretion of the administrative law judge, in making adjust ments or compromises beneficial to the estate. (c) No claims of general creditors shall be allowed if the value of the estate is $2,500 or less and the decedent is survived by a spouse or by one or more minor children. In no event shall claims be allowed in an aggregate amount which is in excess of the valuation of the estate; the general creditors' claims may be prorated or disallowed entirely, and the preferred claims may be prorated subject to the limitations contained in paragraph (d) of this section. (d) If the income of the estate is not sufficient to permit the payment of allowed claims of general creditors within 3 years from the date of allowance; or to permit payment of the allowed claims of preferred creditors, except the United States, within 7 years from the date of allowance, then the unpaid balance of such claims shall not be enforceable against the estate or any of its assets. (e) In the event that it is determined that a part or portion of the estate is to lose its trust character pursuant to findings made under § 4.206, then the administrative law judge may in his discretion prorate all claims and reduce the allowance thereof on a ratio comparable with that existing between the total value of the estate and the value of that portion which is to lose its trust character. § 4.252 Property subject to claims. Claims are payable from income from the lands remaining in trust. Further, except as prohibited by law, all trust moneys of the deceased on hand or accrued at time of death, including bonds, unpaid judgments, and accounts receivable, may be used for the payment of claims, whether the right, title, or interest that is taken by an heir, devisee, or legatee remains in or passes out of trust. WILLS § 4.260 Making; review as to form; revocation. (a) An Indian of the age of 21 years or over and of testamentary capacity, who has any right, title, or interest in trust property, may dispose of such property by a will executed in writing and attested by two disinterested adult witnesses. (b) When an Indian executes a will and submits the same to the Superintendent of the Agency, the Superintendent shall forward it to the Office of the Solicitor for examination as to adequacy of form, and for submission by the Office of the Solicitor to the Superintendent of any appropriate comments. The will or codicil or any replacement or copy thereof may be retained by the Superintendent at the request of the testator or testatrix for safekeeping. A will shall be held in absolute confidence, and no person other than the testator shall admit its existence or divulge its contents prior to the death of the testator. (c) The testator may, at any time during his lifetime, revoke his will by a subsequent will or other writing executed with the same formalities as are required in the case of the execution of a will, or by physically destroying the will with the intention of revoking it. No will that is subject to the regulations of this subpart shall be deemed to be revoked by operation of the law of any State. [36 FR 7186, Apr. 15, 1971, as amended at 36 FR 21284, Nov. 5, 1971; 36 FR 24813, Dec. 23, 1971] § 4.261 Anti-lapse provisions. When an Indian testator devises or bequeaths trust property to any of his lineal descendants, mother or father, brothers or sisters, either of the whole or half-blood or their issue, and the devisee or legatee dies before the testator leaving lineal descendants, such descendants shall take the right, title, or interest so given by the will per stirpes. Relationship by adoption shall be equivalent to relationship by blood. § 4.262 Felonious taking of testator's life. No person who has been finally convicted of feloniously causing the death or taking the life of, or procuring another person to take the life of, the testator, shall take directly or indirectly any devise or legacy under deceased's will. All right, title, and interest existing in such a situation shall vest and be determined as if the person convicted never existed, notwithstanding § 4.261. CUSTODY AND DISTRIBUTION OF ESTATES § 4.270 Custody and control of trust estates. assume The Superintendent may custody or control of all trust personal property of a deceased Indian and he may take such action, including sale thereof, as in his judgment is necessary for the benefit of the estate, the heirs, legatees, and devisees, pending entry of the decision provided for in § 4.240, § 4.241, or § 4.296 or decisions in the settlement of the estate as provided for in § 4.271. All expenses, including expenses of roundup, branding, care, and feeding of livestock, shall be a proper charge against the estate and may be paid by the Superintendent from those funds of the deceased that are under his control, or from the proceeds of a sale of the property or a part thereof. § 4.271 Summary distribution. When an Indian dies intestate leaving only trust personal property or cash of a value of less than $1,000, the Superintendent shall assemble the apparent heirs and hold an informal hearing to determine the proper distribution thereof. A memorandum covering the hearing shall be retained in the agency files showing the date of death of the decedent, the date of hearing, the persons notified and attending, the amount on hand, and the disposition thereof. In the disposition of such funds, the administrative law judge or Superintendent shall dispose of creditors' claims as provided in § 4.251. The Superintendent shall credit the balance, if any, to the legal heirs. [36 FR 24814, Dec. 23, 1971] § 4.272 Omitted property. (a) When, subsequent to the issuance of a decision under § 4.240 or § 4.296, it is found that trust property or interest therein belonging to a decedent has not been included in the inventory, the inventory can be modified either administratively by the Commissioner of the Bureau of Indian Af fairs or by a modification order prepared by him for the administrative law judge's approval and signature to include such omitted property for distribution pursuant to the original decision. Copies of such modifications shall be furnished to the Superintendent and to all those persons who share in the estate. (b) When the property to be included takes a different line of descent from that shown in the original decision, the Commissioner of the Bureau of Indian Affairs shall notify the administrative law judge who shall proceed to hold hearings if necessary and shall issue a decision under § 4.240. The record of any such proceeding shall be lodged with the title plant designated under § 4.236(b). [36 FR 7186, Apr. 15, 1971; 36 FR 7588, Apr. 22, 1971] § 4.273 Improperly included property. (a) When subsequent to a decision under § 4.240 or § 4.296, it is found that property has been improperly included in the inventory of an estate, the inventory shall be modified to eliminate such property. A petition for modification may be filed by the Superintendent of the Agency where the property is located, or by any party in interest. (b) The administrative law judge shall review the record of the title upon which the modification is to be based, and enter an appropriate decision. If the decision is entered without a hearing, the administrative law judge shall give notice of his action to all parties whose rights are adversely affected allowing them 60 days in which to show cause why the decision should not then become final. (c) Where appropriate the administrative law judge may conduct a hearing at any stage of the modification proceeding. Any such hearing shall be scheduled and conducted in accordance with the rules of this subpart. The administrative law judge shall enter a final decision based on his findings, modifying or refusing to modify the property inventory and his decision shall become final at the end of 60 days from the date it is mailed unless a notice of appeal is filed by an aggrieved party within such period. Notice of entry of the decision shall be given in accordance with § 4.240(b). (d) A party aggrieved by the administrative law judge's decision may appeal to the Board pursuant to the procedures in §§ 4.291-4.297. (e) The record of all proceedings shall be lodged with the title plant designated under § 4.236(b). [36 FR 24814, Dec. 23, 1971] § 4.274 Distribution of estates. (a) Unless the Superintendent shall have received a petition for rehearing filed pursuant to the requirements of § 4.241(a) or a copy of a notice of appeal filed pursuant to the requirements of § 4.291(b), he shall pay allowed claims, distribute the estate, and take all other necessary action directed by the administrative law judge's final order. (b) The Superintendent may not pay claims nor make distribution of an estate during the pendency of proceedings under § 4.241 or § 4.242 unless the administrative law judge orders otherwise in writing. The Board may, at any time, authorize the administrative law judge to issue interim orders for payment of claims or for partial distribution during the pendency of proceedings on appeal. [36 FR 7186, Apr. 15, 1971, as amended at 36 FR 24814, Dec. 23, 1971] MISCELLANEOUS § 4.280 Probate fees. Upon a determination of the heirs to any trust or restricted Indian property of the value of $250 or more or to any allotment, or after approval of any will disposing of such trust or restricted property, the following fees shall be paid (a) by the heirs, or (b) by the beneficiaries under the will, or (c) from the estate of the decedent, or (d) from the proceeds of the sale of the allotment, or (e) from any trust funds belonging to the estate of the decedent: § 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 |