(a) The following table is a guide to the relevant contents of this subpart by subject matter.

(b) Except as limited by the provisions of this part, the regulations in subparts A and B of this part apply to these proceedings.

In addition to the definitions in subpart A of this part, the following definitions apply to this subpart:

Adversely affected means that a person or entity has a legally protected interest that was or is likely to be injured by the action, decision, or order on appeal.

Agency means:

(1) The Bureau of Indian Affairs (BIA) agency office, or any other designated office in BIA, having jurisdiction over trust or restricted land and trust personalty; and

(2) Any office of a Tribe that has entered into a contract or compact to fulfill the probate function under 25 U.S.C. 5321 or 5363.

Appellant means a person or entity appealing an action, decision, or order to the Board.

Board means the Interior Board of Indian Appeals within OHA.

Day means a calendar day.

Decedent means a person who is deceased.

Devise means a gift of property by will. Also, to give property by will.

Devisee means a person or entity that receives property under a will.

Estate means the trust or restricted land and trust personalty owned by the decedent at the time of death.

Formal probate proceeding means a proceeding, conducted by a probate judge, in which evidence is obtained through the testimony of witnesses and the receipt of relevant documents.

Heir means any individual or entity eligible to receive property from a decedent in an intestate proceeding.

Individual Indian Money (IIM) account means an interest-bearing account for trust funds held by the Secretary that belong to a person who has an interest in trust assets. These accounts are under the control and management of the Secretary.

Interested party means a person or entity adversely affected by the action, decision, or order on appeal, or whose interest would be adversely affected if that action, decision, or order were modified, reversed, or set aside. In an appeal from an order of a probate judge, the term “interested party” is limited to:

(1) Any potential or actual heir;

(2) Any devisee under a will;

(3) Any person or entity asserting a claim against a decedent's estate;

(4) Any Tribe having a statutory option to purchase the trust or restricted property interest of a decedent; or

(5) Any co-owner exercising a purchase option.

Intestate means that the decedent died without a valid will as determined in the probate proceeding.

LTRO means the Land Titles and Records Office within BIA.

OHA means Office of Hearings and Appeals, Department of the Interior.

Probate means the legal process by which applicable tribal, Federal, or State law that affects the distribution of a decedent's estate is applied in order to:

(1) Determine the heirs;

(2) Determine the validity of wills and determine devisees;

(3) Determine whether claims against the estate will be paid from trust personalty; and

(4) Order the transfer of any trust or restricted land or trust personalty to the heirs, devisees, or other persons or entities entitled by law to receive them.

Probate judge means an ALJ or IPJ in the Probate Hearings Division.

Restricted property means real property, the title to which is held by an Indian but which cannot be alienated or encumbered without the Secretary's consent. For the purposes of probate proceedings, restricted property is treated as if it were trust property. Except as the law may provide otherwise, the term “restricted property” as used in this part does not include the restricted lands of the Five Civilized Tribes of Oklahoma or the Osage Nation.

Trust personalty means all tangible personal property, funds, and securities of any kind that are held in trust in an IIM account or otherwise supervised by the Secretary.

Trust property means real or personal property, or an interest therein, the title to which is held in trust by the United States for the benefit of an individual Indian or tribe.

Will means a written testamentary document that was executed by the decedent and attested to by two disinterested adult witnesses, and that states who will receive the decedent's trust or restricted property.

(a) Filing with the Board generally. A document required or permitted to be filed with the Board must be delivered to the Board as specified in this subpart and in the OHA Standing Orders on Contact Information and the OHA Standing Orders on Electronic Transmission found on the Department of the Interior OHA website, at https://www.doi.gov/oha.

(b) Methods of filing—(1) Electronic. A document may be filed electronically with the Board under the terms specified in the OHA Standing Orders on Electronic Transmission. Any Federal, State, or local agency and any attorney representing a person or entity must file electronically, unless otherwise specified in the OHA Standing Orders on Electronic Transmission or the Board has allowed non-electronic filing for good cause.

(2) Non-electronic. A document filed by mail, commercial courier, or hand delivery must be delivered to the Board at the address specified in the OHA Standing Orders on Contact Information.

(c) Timeliness and effective date of filing. When the Board is determining timeliness, the effective date for filing a notice of appeal or other document with the Board depends on the method of filing.

(1) Electronic. For documents filed by electronic transmission under the terms specified in the OHA Standing Orders on Electronic Transmission, the effective date of filing is the date of transmission to the Board. A document filed electronically will be considered timely filed if it is transmitted to the Board by 11:59 p.m. Eastern Time on the last day of the period prescribed for filing.

(2) Mail. For documents sent by United States mail or a foreign government's mail system, the effective date of filing is the date of mailing to the Board.

(i) If the envelope bears a legible postmark dated on or before the last day of the period prescribed for filing, the document will be considered timely filed although it is received after the prescribed deadline.

(ii) If the envelope bears a legible postmark dated after the last day of the period prescribed for filing the document, the document will not be considered timely filed, regardless of when the document is deposited in the mail.

(iii) If the envelope bears an illegible postmark, the person or entity who is required to file the document has the burden of proving the date of mailing to the Board.

(3) Commercial courier or hand delivery. For documents delivered by commercial courier or hand delivery, the effective date of filing is the date of receipt in the Board's office during its regular business hours by a person authorized to receive the filing. A document delivered by commercial courier or hand delivery that is received after the Board's regular business hours is considered filed on the next business day.

(d) Serving Notices of Appeal and other documents. Any party filing a notice of appeal or other document with the Board must concurrently serve complete copies of the document, including any attachments, on all interested parties in the proceeding, except as provided at 43 CFR 4.31. Service must be made by electronic transmission, mailing, delivery by commercial courier, or delivery by hand. Service may be made electronically on the Office of the Solicitor and Department of the Interior bureaus and offices under the terms specified in the OHA Standing Orders on Electronic Transmission. Service may be made electronically on all other persons or entities, through means they have consented to in writing, under the terms specified in the OHA Standing Orders on Electronic Transmission. All documents filed with the Board must include a certification that service was made as required by this section.

(e) 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:

(1) 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;

(2) The last day of the period is to be included, unless it is a nonbusiness day (e.g., Saturday, Sunday, or Federal holiday), in which event the period runs until the end of the next business day; and

(3) When the time prescribed or allowed is 7 days or less, intermediate Saturdays, Sundays, Federal holidays, and other nonbusiness days are excluded from the computation.

(f) Extensions of time. (1) The Board may extend the time for filing or serving any document except a notice of appeal.

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

(3) For good cause the Board may grant an extension of time on its own initiative.

(g) 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.

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

(b) The 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 must 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) BIA is considered an interested party in any proceeding before the Board. The Board may request that BIA submit a brief in any case before the Board.

(d) An original only of each document should be filed with the Board. Documents should not be bound along the side.

(e) The Board may also specify a date on or before which a brief is due. Unless expedited briefing has been granted, such date may not be less than the appropriate period of time established in this section.

(a) Decisions of the Board will be made in writing and will set forth findings of fact and conclusions of law. The decision may adopt, modify, reverse, or set aside any proposed finding, conclusion, or order of an administrative law judge, Indian probate judge, or BIA official. Distribution of decisions must be made by the Board to all parties concerned. Unless otherwise stated in the decision, rulings by the Board are final for the Department and must be given immediate effect.

(b) The Board may issue an order affirming, without opinion, a decision or order of an administrative law judge, Indian probate judge, or BIA official if the Board determines that: the result reached was correct; any errors in the decision or order under review were harmless or nonmaterial; and either the issues on appeal are squarely controlled by existing Board or Federal court precedent and do not involve the application of precedent to a novel factual situation, or the factual and legal issues raised on appeal are not so substantial that the case warrants the issuance of a written opinion by the Board. An order affirming without opinion under this paragraph will cite the Board's delegated authority and this paragraph; and state, without further explanation or reasoning, that the result of the decision or order under review is affirmed without opinion. Such an order approves the result reached but does not necessarily imply approval of all the reasoning of the decision or order under review.

(c) Nothing in paragraph (a) or (b) of this section limits the Board's authority to summarily dismiss an appeal or to summarily adopt, modify, reverse, or set aside a decision or order under review.

(d) If the Board does not issue a decision in a case within 36 months after the notice of appeal is received by the Board and the decision or order of an administrative law judge, Indian probate judge, or BIA official being appealed is not in effect, the appellant may move for the Board to issue an order dismissing the case without an opinion by the Board on the merits and making the decision or order being appealed final for the Department. In consolidated appeals, the 36-month period will begin after the last notice of appeal is received by the Board. If each appellant in a case, including any consolidated appeals, submits or joins a written motion for dismissal under this paragraph, the Board will issue an order dismissing the case without an opinion by the Board. The Board's order, issued under authority of this paragraph, will make the decision or order being appealed final for the Department. The date of the Board's order is the date of finality of the decision or order being appealed for the purpose of judicial review.

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

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

(a) Except as otherwise provided by applicable statute or regulation, the provisions of 43 CFR 4.21 and this section govern the effect of a decision pending appeal and exhaustion of administrative remedies.

(b) A decision of an administrative law judge, Indian probate judge, or BIA official will not be effective during the time in which an interested party may file a notice of appeal, and the timely filing of a notice of appeal will suspend the effect of the decision appealed from pending the Board's decision on appeal, unless by order of the Board the decision, or any part of it, is made immediately effective.

(c) No further appeal will lie within the Department from a decision of the Board.

(d) The filing of a petition for reconsideration is not required to exhaust administrative remedies.

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

(d) A petition for reconsideration based solely on an argument that the case should not have been affirmed without opinion under § 4.312(b) is not permitted.

Whenever any matter is remanded from any Federal court to the Board for further proceedings, the Board will remand the matter to an administrative law judge, an Indian probate judge, or BIA. In the alternative, to the extent the court's directive and time limitations permit, the parties will be allowed an opportunity to submit to the Board a report recommending procedures for it to follow to comply with the court's order. The Board will enter special orders governing matters on remand.

(a) Inquiries about cases. Except for ex parte communications that are prohibited under 43 CFR 4.27, all inquiries by a party to a matter pending before the Board should be directed to the Board's clerk, and all inquiries by a non-party to a matter pending before the Board should be directed to the chief administrative judge of the Board or the administrative judge assigned the matter.

(b) Disqualification. An administrative judge may withdraw from a case in accordance with standards found in the recognized canons of judicial ethics if the judge deems this action appropriate. If, before a decision of the Board, a party files an affidavit of personal bias or disqualification with substantiating facts, and the administrative judge concerned does not withdraw, the OHA Director will determine the matter of disqualification.

An appeal will be limited to those issues that were before the administrative law judge or Indian probate judge upon the petition for rehearing or reopening, or regarding added or omitted property or purchase of interests in an estate, or before the BIA official on review. However, except as specifically limited in this part or in title 25 of the Code of Federal Regulations, the Board will not be limited in its scope of review and may exercise the inherent authority of the Secretary to correct a manifest injustice or error where appropriate.

Any interested party has a right to appeal to the Board if he or she is adversely affected by an order of a probate judge under part 30 of this subtitle:

(a) On a petition for rehearing;

(b) On a petition for reopening;

(c) Regarding purchase of interests in a deceased Indian's estate; or

(d) Regarding added or omitted property; or

(e) Determining that a person for whom a probate proceeding is sought is not deceased.

(a) A person wishing to appeal an order within the scope of § 4.320 must file a written notice of appeal within 30 days after the probate judge has sent the order and accurate appeal instructions. We will dismiss any appeal not filed by this deadline.

(b) The notice of appeal must be signed by the appellant, the appellant's attorney, or other qualified representative as provided at 43 CFR 1.3, and must be filed with the Board of Indian Appeals by electronic transmission, mail, commercial courier, or hand delivery, in accordance with § 4.310(b).

(a) Each appeal must contain a written statement of the errors of fact and law upon which the appeal is based. This statement may be included in either the notice of appeal filed under § 4.321(a) or an opening brief filed under § 4.311(a).

(b) The notice of appeal must include the names and addresses of the parties served.

(a) The appellant must file the original notice of appeal with the Board.

(b) A copy of the notice of appeal must be served on the probate judge whose order is being appealed, as well as on every other interested party, in accordance with § 4.310(d).

(c) The notice of appeal filed with the Board must include a certification that service was made as required by this section.

(a) On receiving a copy of the notice of appeal, the probate judge whose order is being appealed must notify:

(1) The agency concerned; and

(2) The LTRO where the original record was filed under § 30.233 of this subtitle.

(b) If a transcript of the hearing was not prepared, the probate judge must have a transcript prepared and forwarded to the LTRO within 30 days after receiving a copy of the notice of appeal. The LTRO must include the original transcript in the record.

(c) Within 30 days of the receipt of the transcript, the LTRO must do the following:

(1) Prepare a table of contents for the record;

(2) Make two complete copies of the original record, including the transcript and table of contents;

(3) Certify that the record is complete;

(4) Forward the certified original record, together with the table of contents, to the Board by certified mail, electronic transmission in accordance with § 4.310(b), or other service with delivery confirmation; and

(5) Send one copy of the complete record to the agency.

(d) While the appeal is pending, the copies of the record will be available for inspection at the LTRO and the agency.

(e) Any party may file an objection to the record. The party must file his or her objection with the Board within 15 days after receiving the notice of docketing under § 4.325.

(f) For any of the following appeals, the probate judge must prepare an administrative record for the order and a table of contents for the record and must forward them to the Board:

(1) An interlocutory appeal under § 4.28;

(2) An appeal from an order under 43 CFR 30.253 regarding added or omitted property; or

(3) An appeal from an order under 43 CFR 30.124 determining that a person for whom a probate proceeding is sought is not deceased.

The Board will docket the appeal on receiving the probate record from the LTRO or the administrative record from the probate judge, and will provide a notice of the docketing and the table of contents for the record to all interested parties as shown by the record on appeal. The docketing notice will specify the deadline for filing briefs and will cite the procedural regulations governing the appeal.

(a) After the Board makes a decision other than a remand, it must forward to the designated LTRO:

(1) The record filed with the Board under § 4.324(d) or (f); and

(2) All documents added during the appeal proceedings, including any transcripts and the Board's decision.

(b) The LTRO must conform the duplicate record retained under § 4.324(b) to the original sent under paragraph (a) of this section and forward the duplicate record to the agency concerned.

(a) These regulations apply to the practice and procedure for:

(1) Appeals to the Board of Indian Appeals from administrative actions or decisions of officials of the Bureau of Indian Affairs issued under regulations in 25 CFR chapter I; and

(2) Administrative review by the Board of Indian Appeals of other matters pertaining to Indians which are referred to it for exercise of review authority of the Secretary or the Assistant Secretary—Indian Affairs.

(b) Except as otherwise permitted by the Secretary or the Assistant Secretary—Indian Affairs by special delegation or request, the Board shall not adjudicate:

(1) Tribal enrollment disputes;

(2) Matters decided by the Bureau of Indian Affairs through exercise of its discretionary authority; or

(3) Appeals from decisions pertaining to final recommendations or actions by officials of the Office of Natural Resources Revenue or any predecessor or successor organization, unless the decision is based on an interpretation of Federal Indian law (decisions not so based which arise from determinations of the Office of Natural Resources Revenue or any predecessor or successor organization, are appealable to the Interior Board of Land Appeals in accordance with subpart E of this part).

Any interested party adversely affected by a final administrative action or decision of an official of the Bureau of Indian Affairs issued under regulations in title 25 of the Code of Federal Regulations may appeal to the Board of Indian appeals, except—

(a) To the extent that decisions which are subject to appeal to a higher official within the Bureau of Indian Affairs must first be appealed to that official;

(b) Where the decision has been approved in writing by the Secretary or Assistant Secretary—Indian Affairs prior to promulgation; or

(c) Where otherwise provided by law or regulation.

(a) A notice of appeal must be in writing, signed by the appellant or by his attorney of record or other qualified representative as provided by 43 CFR 1.3, and filed with the Board of Indian Appeals by electronic transmission, mail, commercial courier, or hand delivery, in accordance with § 4.310(b). The notice of appeal must be filed within 30 days after receipt by the appellant of the decision from which the appeal is taken. A copy of the notice of appeal must simultaneously be sent to the Assistant Secretary—Indian Affairs and the Associate Solicitor, Division of Indian Affairs. As required by § 4.333, the notice of appeal sent to the Board must certify that a copy has been sent to the Assistant Secretary—Indian Affairs and to the Associate Solicitor, Division of Indian Affairs. A notice of appeal not timely filed will be dismissed for lack of jurisdiction. A notice of appeal must include:

(1) A full identification of the case;

(2) A statement of the reasons for the appeal and of the relief sought; and

(3) The names and addresses of all additional interested parties, Indian tribes, tribal corporations, or groups having rights or privileges which may be affected by a change in the decision, whether or not they participated as interested parties in the earlier proceedings.

(b) In accordance with 25 CFR 2.508, within 40 days from the Board's receipt of a notice of appeal, the Assistant Secretary—Indian Affairs may decide to review the appeal. If within that time the Board receives proper notice from the Assistant Secretary—Indian Affairs that a decision has been made to review the appeal, any documents concerning the case filed with the Board will be transmitted to the Assistant Secretary—Indian Affairs.

(c) When the appellant is an Indian or Indian tribe not represented by counsel, the official who issued the decision appealed shall, upon request of the appellant, render such assistance as is appropriate in the preparation of the appeal.

(d) At any time during the pendency of an appeal, an appropriate bond may be required to protect the interest of any Indian, Indian tribe, or other parties involved.

On or before the date of filing of the notice of appeal the appellant must serve a copy of the notice upon each known interested party, upon the official of the Bureau of Indian Affairs from whose decision the appeal is taken, upon the Assistant Secretary—Indian Affairs, and upon the Associate Solicitor, Division of Indian Affairs. The notice of appeal filed with the Board must certify that service was made as required by this section and must show the names and addresses of all parties served. If the appellant is an Indian or an Indian Tribe not represented by counsel, the appellant may request the official of the Bureau whose decision is appealed to assist in service of copies of the notice of appeal and any supporting documents.

Requests for extensions of time to file documents may be granted upon a showing of good cause, except for the time fixed for filing a notice of appeal which, as specified in § 4.332 of this part, may not be extended.

(a) Within 20 days after receipt of a notice of appeal, or upon notice from the Board, the official of the Bureau of Indian Affairs whose decision is appealed shall assemble and transmit the record to the Board. The record on appeal shall include, without limitation, copies of transcripts of testimony taken; all original documents, petitions, or applications by which the proceeding was initiated; all supplemental documents which set forth claims of interested parties; and all documents upon which all previous decisions were based.

(b) The administrative record shall include a Table of Contents noting, at a minimum, inclusion of the following:

(1) The decision appealed from;

(2) The notice of appeal or copy thereof; and

(3) Certification that the record contains all information and documents utilized by the deciding official in rendering the decision appealed.

(c) If the deciding official receives notification that the Assistant Secretary—Indian Affairs has decided to review the appeal before the administrative record is transmitted to the Board, the administrative record shall be forwarded to the Assistant Secretary—Indian Affairs rather than to the Board.

(a) An appeal will be assigned a docket number by the Board 40 days after receipt of the notice of appeal unless the Board has been properly notified that the Assistant Secretary—Indian Affairs has assumed jurisdiction over the appeal. If, prior to the time that the Board would ordinarily assign a docket number, the Board receives notice that the Assistant Secretary—Indian Affairs has decided not to assume jurisdiction over the appeal, the Board will assign a docket number to the appeal upon receipt of that notice. A notice of docketing will be sent to all interested parties as shown by the record on appeal upon receipt of the administrative record and assignment of a docket number. The docketing notice will specify the time within briefs must be filed, cite the procedural regulations governing the appeal, and include a copy of the Table of Contents furnished by the deciding official if it was not previously sent to the interested parties.

(b) Any objection to the administrative record as constituted must be filed with the Board within 15 days of the objecting party's receipt of the Table of Contents.

(a) The Board may make a final decision, or where the record indicates a need for further inquiry to resolve a genuine issue of material fact, the Board may require a hearing. All hearings shall be conducted by an administrative law judge of the Office of Hearings and Appeals. The Board may, in its discretion, grant oral argument before the Board.

(b) Where the Board finds that one or more issues involved in an appeal or a matter referred to it were decided by the Bureau of Indian Affairs based upon the exercise of discretionary authority committed to the Bureau, and the Board has not otherwise been permitted to adjudicate the issue(s) pursuant to § 4.330(b) of this part, the Board shall dismiss the appeal as to the issue(s) or refer the issue(s) to the Assistant Secretary—Indian Affairs for further consideration.

(a) When an evidentiary hearing pursuant to § 4.337(a) of this part is concluded, the administrative law judge shall recommend findings of fact and conclusions of law, stating the reasons for such recommendations. A copy of the recommended decision shall be sent to each party to the proceeding, the Bureau official involved, and the Board. Simultaneously, the entire record of the proceedings, including the transcript of the hearing before the administrative law judge, shall be forwarded to the Board.

(b) The administrative law judge shall advise the parties at the conclusion of the recommended decision of their right to file exceptions or other comments regarding the recommended decision with the Board in accordance with § 4.339 of this part.

Within 30 days after receipt of the recommended decision of the administrative law judge, any party may file exceptions to or other comments on the decision with the Board.

Subsequent to a decision by the Board, the record filed with the Board and all documents added during the appeal proceedings, including the Board's decision, shall be forwarded to the official of the Bureau of Indian Affairs whose decision was appealed for proper disposition in accordance with rules and regulations concerning treatment of Federal records.