99-4791. Reopening Certain Escheated Estates  

  • [Federal Register Volume 64, Number 38 (Friday, February 26, 1999)]
    [Notices]
    [Pages 9520-9521]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 99-4791]
    
    
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    DEPARTMENT OF THE INTERIOR
    
    Office of the Secretary
    
    
    Reopening Certain Escheated Estates
    
    AGENCY: Office of the Secretary, Interior.
    
    ACTION: Notice.
    
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    SUMMARY: The Secretary of the Interior is granting a petition filed by 
    the Deputy Commissioner of Indian Affairs with the Office of Hearings 
    and Appeals (OHA) to reopen estates in which property escheated to an 
    Indian tribe under the escheat provision of the Indian Land 
    Consolidation Act. The petition is granted to give full effect to the 
    1997 decision of the U.S. Supreme Court in Babbitt v. Youpee, 519 U.S. 
    234 (1997), which found the escheat provision unconstitutional, and to 
    prevent manifest injustice.
    
    EFFECTIVE DATE: February 19, 1999.
    
    FOR FURTHER INFORMATION CONTACT: Robert L. Baum, Director, Office of 
    Hearings and Appeals, United States Department of the Interior, 4015 
    Wilson Boulevard, Mail Stop 1103 BT-3, Arlington, Virginia 22203; 
    telephone: (703) 235-3810.
    
    SUPPLEMENTARY INFORMATION:
    
    Background
    
        The U.S. Supreme Court issued a decision in Babbitt v. Youpee, 519 
    U.S. 234 (1997), holding that the escheat provision of the Indian Land 
    Consolidation Act, 25 U.S.C. 2206(a), was unconstitutional. The Deputy 
    Commissioner for Indian Affairs filed a Petition for Reopening All 
    Estates in Which Property Escheated to an Indian Tribe Pursuant to 25 
    U.S.C. 2206 (the Petition) with the OHA.
        On October 2, 1998, the Secretary of the Interior assumed 
    jurisdiction over the Petition pursuant to 43 CFR 4.5(a), and issued a 
    proposed order reopening the escheated estates in question. The 
    proposed reopening of the estates gave the Department of the Interior 
    (Department) the opportunity to redistribute the escheated interests to 
    the rightful distributees without regard to the unconstitutional 
    provision. The proposed order provided that all prior Departmental 
    probate determinations wherein land interests were ordered escheated to 
    Indian tribes under 25 U.S.C. 2206 would be reopened and modified ``to 
    the extent that the appropriate Bureau of Indian Affairs official 
    having jurisdiction over the affected land titles shall distribute any 
    such escheated interests to the rightful heirs and beneficiaries 
    without regard to the provisions of 25 U.S.C. 2206, except that prior 
    determinations where an Indian tribe has paid fair market value for any 
    escheated interest under 25 U.S.C. 2206 will not be reopened or 
    modified.'' Recognizing that some cases would fall outside the 
    parameters of the proposed order, the Secretary delegated authority to 
    the Department's Administrative Law Judges to adjudicate such cases on 
    an ad hoc basis pursuant to existing law.
        On October 7, 1998, the Office of the Secretary published a 
    ``Notice of the Secretary's Assumption of Jurisdiction Over Probate of 
    Estates in Which Property Escheated to an Indian Tribe Pursuant to 25 
    U.S.C. 2206 and Opportunity to Comment'' in the Federal Register. The 
    Notice gave interested parties until November 2, 1998, to submit 
    comments to the Director of OHA.
    
    Discussion of Interested Party Comments
    
        The OHA Director received seven timely comments in response to the 
    published Notice. One additional comment was received after November 2, 
    1998. None of the comments received objected to the proposed reopening 
    of the escheated estates or suggested any changes to the language in 
    the Secretary's proposed order. The comments are summarized below and 
    responses follow.
        Comment: Four comments expressed concern about the administrative 
    burdens and costs associated with the complicated task of reopening the 
    case, and suggested that the tribes should not bear the burden and 
    expense of correcting a problem they did not create.
        Response: The Department expects that the Bureau of Indian Affairs 
    (BIA) will bear the majority of administrative burdens and costs 
    associated with the reopening of these estates. Direct cost to the 
    tribes should be minimal. The Department will request a supplemental 
    appropriation for the costs incurred by the BIA in reopening the 
    estates.
        Comment: Four comments suggested that no tribe should be held 
    liable for reimbursing lease income and interest that BIA sent the 
    tribe from the escheated interests.
        Response: The heirs and beneficiaries are entitled to the money 
    that they lost while the tribes held their interests under the escheat 
    provision. The Supreme Court's decision makes it clear that the tribes 
    were not entitled to that money. Furthermore, many tribes escrowed this 
    money in anticipation of a reopening of the escheated estates.
        Comment: One Tribe requested that the option of government purchase 
    of escheated interests on the Quinault Reservation not be considered.
        Response: This comment is outside the scope of the current issue 
    and does not affect this decision.
        Comment: One Tribe suggested that Congress should appropriate funds 
    for the process of reopening the estates as well as for the tribes to 
    buy the fractionated interests from any heirs who may not want to keep 
    their interest, but seek a fair market value for them.
        Response: The Department will be requesting supplemental 
    appropriations for costs incurred by the BIA in reopening the escheated 
    interests. Congress has provided a $5 million appropriation for a pilot 
    project to enable tribes to purchase fractional interests from willing 
    sellers. However, there is no program at present that would apply 
    nationally.
        Comment: One Tribe commented that it was incorrectly listed in the 
    Federal Register Notice of October 7, 1998, as the ``Stockbridge-Munsee 
    Community of Minnesota'' and their correct name is the ``Stockbridge-
    Munsee Community of Wisconsin.'' The Tribe also said it had no record 
    of land escheating to it under 25 U.S.C. 2206, and asked to be told if 
    the BIA or the Department is aware of any property that escheated to 
    this Tribe under Act.
        Response: BIA is looking into this matter and will advise the 
    Tribe.
        Comment: One Tribe expressed concerns about time delays or 
    reallocation of resources affecting ongoing fee-to-trust conveyances by 
    tribal governments or tribal members, and funding to participate in the 
    Indian Land Consolidation Project proposed by BIA. The Tribe has 
    applied to participate in this pilot project and seeks funding at the 
    earliest possible date for tribes with escheated lands that have 
    already applied for the pilot to carry out their proposed projects.
        Response: This comment is outside the scope of the current issue 
    and does not affect this decision.
    
    Department's Determination
    
        The Secretary of the Interior has determined the following:
        1. The Supreme Court of the United States has found the escheat 
    provision
    
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    of the Indian Land Consolidation Act to be unconstitutional.
        2. Reopening all estates in which property escheated to an Indian 
    tribe under the escheat provision of the Indian Land Consolidation Act:
        a. Allows correction of the prior distribution of assets;
        b. Is in the public interest;
        c. Furthers the Department's trust responsibility; and
        d. Prevents manifest injustice.
        3. For the reasons given above, all estates in which property 
    escheated to an Indian tribe under the escheat provision of the Indian 
    Land Consolidation Act are reopened. The Secretary will distribute 
    interests in these estates to the rightful distributees in accordance 
    with Babbitt v. Youpee, 519 U.S. 234 (1997).
        4. The Bureau of Indian Affairs will bear the majority of 
    administrative costs associated with this action.
        5. The Department will ask Congress for a supplemental 
    appropriation for this project.
    
    Text of the Secretary's Order
    
        The text of the Order signed by the Secretary on February 19, 1999, 
    reads as follows:
    
    United States Department of the Interior
    
    Office of the Secretary, Washington, D.C. 20240
    
        In the matter of all estates in which property escheated to an 
    Indian Tribe pursuant to 25 U.S.C. 2206.
    
    Order
    
        On January 21, 1997, the United States Supreme Court issued a 
    decision in Babbitt v. Youpee, 519 U.S. 234 (1997), in which it 
    essentially held that the ``escheat provision'' of the Indian Land 
    Consolidation Act, 25 U.S.C. 2206, as amended, is unconstitutional. On 
    October 2, 1998, the Deputy Commissioner for Indian Affairs filed a 
    Petition for Reopening All Estates in Which Property Escheated to an 
    Indian Tribe Pursuant to 25 U.S.C. 2206 (the ``Petition'') with the 
    Office of Hearings and Appeals. By Order the same day, I took 
    jurisdiction of the Petition and solicited comments on it and a 
    Proposed Order for Reopening Escheated Estates. Both the Petition and 
    Proposed Order were served upon the affected tribes.
        To give full effect to the Supreme Court's holding in Youpee and to 
    further the Department of the Interior's trust responsibility to the 
    Indian people, I find that the public interest would be furthered by 
    applying the Youpee decision retroactively to prior Departmental 
    probate determinations consistent with the procedures set forth more 
    fully below. I further determine that reopening these estates will 
    prevent manifest injustice and that a reasonable possibility exists for 
    correction of prior distribution of assets which occurred in reliance 
    on the unconstitutional statute.
        In furtherance of my Order dated October 2, 1998 in which I assumed 
    jurisdiction to decide the Petition pursuant to 43 CFR Sec. 4.5(a), and 
    further by virtue of the power and authority vested in me by Section 1 
    of the Act of June 25, 1910, as amended, 25 U.S.C. 372 (1970), and 
    other applicable statutes, it is hereby ordered:
        The Petition for Reopening All Estates in Which Property Escheated 
    to an Indian Tribe Pursuant to 25 U.S.C. 2206 is hereby granted. All 
    prior Departmental probate determinations wherein land interests were 
    Ordered to be escheated to Indian tribes pursuant to 25 U.S.C. 2206 are 
    hereby reopened. The determinations made therein are modified to the 
    extent that the appropriate Bureau of Indian Affairs official having 
    jurisdiction over the affected land titles shall distribute any such 
    escheated interests to the rightful heirs and beneficiaries without 
    regard to the provisions of 25 U.S.C. 2206, except that prior 
    determinations where an Indian tribe has paid fair market value for any 
    escheated interest under 25 U.S.C. 2206 will not be reopened or 
    modified.
        It is recognized that there will be cases that do not fall within 
    the parameters of this Order and which will need to be treated on an ad 
    hoc basis, such as cases where there was no determination of heirs, 
    cases of will construction, and any other type of miscellaneous case 
    where Bureau of Indian Affairs personnel are uncertain as to how to 
    proceed. The Bureau of Indian Affairs shall refer such cases to the 
    respective Administrative Law Judge for adjudication. To the extent not 
    already delegated, I hereby delegate authority to the Administrative 
    Law Judges to assume jurisdiction over, and enter determinations in, 
    those cases pursuant to existing law.
        The Director, Office of Hearings and Appeals, or his delegate will 
    have jurisdiction to decide any objection to the implementation of this 
    Order. Any objection to implementation of this Order shall be made in 
    writing to: Director, Office of Hearings and Appeals, U.S. Department 
    of the Interior, 4015 Wilson Boulevard, Room 1111/BT-3, Arlington, VA 
    22203.
    
        Dated the 19th day of February, 1999.
    Bruce Babbitt,
    Secretary of the Interior.
    
    Edward B. Cohen,
    Deputy Solicitor.
    [FR Doc. 99-4791 Filed 2-25-99; 8:45 am]
    BILLING CODE 4310-79-M
    
    
    

Document Information

Effective Date:
2/19/1999
Published:
02/26/1999
Department:
Interior Department
Entry Type:
Notice
Action:
Notice.
Document Number:
99-4791
Dates:
February 19, 1999.
Pages:
9520-9521 (2 pages)
PDF File:
99-4791.pdf