[Federal Register Volume 61, Number 128 (Tuesday, July 2, 1996)]
[Proposed Rules]
[Pages 34400-34405]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16037]
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DEPARTMENT OF THE INTERIOR
25 CFR Part 152
RIN 1076-AD42
Issuance of Patents in Fee, Certificates of Competency, Removal
of Restrictions, and Sale of Certain Indian Lands
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Proposed rule.
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SUMMARY: The purpose of this proposed rule making action is to revise
the Issuance of Patents in Fee, Certificates of Competency, Removal of
Restrictions, and Sale of Certain Indian Lands regulations. This rule
was identified for reinvention under the National Performance Review.
It is written in plain English to make the rule easier to read and
understand for Indian landowners and Bureau realty staff.
DATES: Comments must be received on or before September 3, 1996.
ADDRESSES: Mail or hand carry your comments to Terrance L. Virden,
Acting Director, Office of Trust Responsibilities, Bureau of Indian
Affairs, Department of the Interior, 1849 C Street, N.W., MS 4513 MIB,
Washington, D.C. 20240. Comments may be hand delivered from 9:00 a.m.
to 4:00 p.m., Monday through Friday or sent by facsimile to Facsimile
No. (202) 219-1065.
FOR FURTHER INFORMATION CONTACT:
Alice Harwood, Acting Chief, Division of Real Estates Services, Office
of Trust Responsibilities, Bureau of Indian Affairs, Department of the
Interior, 1849 C Street, N.W., MS 4513 MIB, Washington, D.C. 20240,
Telephone No. (202) 208-7737.
SUPPLEMENTARY INFORMATION: The primary author of this document is Pearl
Kennedy, Realty Specialist, Division of Real Estate Services, Bureau of
Indian Affairs, Department of the Interior. The proposed rule has been
rewritten to facilitate its use by the general public and the
individual Indians affected by the rule. Sections that no longer apply
have been deleted and sections added for clarification. No substantive
revisions are proposed in this rule.
The authority to issue rules and regulations is vested in the
Secretary of the Interior by 5 U.S.C. 301 and sections 463 and 465 of
the Revised Statutes, 25 U.S.C. 2 and 9, and delegated to the Assistant
Secretary--Indian Affairs by 209 DM 8.
Publication of the proposed rule by the Department of the Interior
(Department) provides the public an opportunity to participate in the
rulemaking process. Interested persons may submit written comments
regarding the proposed rule to the location identified in the
``addresses'' section of this document.
The Department has determined that this rule:
does not have significant federalism effects.
is not a major rule under E.O. 12866 and will not require
a review by the Office of Management and Budget.
will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et. seq.) because this rule applies only to Indian
applicants.
does not have significant takings implications under E.O.
12630.
does not have significant effects on the economy, nor will
it result in increases in costs or prices for consumers, individual
industries, Federal, State, or local governments, agencies, or
geographical regions.
does not have any adverse effects on competition,
employment, investment, productivity, innovation, or the export/import
market.
is categorically excluded from the National Environmental
Policy Act of 1969 because it is of an administrative, technical, and
procedural nature. Therefore, neither an environmental assessment nor
an environmental impact statement is warranted.
does not impose any unfunded mandates on any governmental
or private entity and is in compliance with the provisions of the
Unfunded Mandates Act of 1995.
is exempt by OMB from the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3507(d)) and does not require a review
by the Office of Management and Budget.
List of Subjects in Part 152
Indians--lands.
For the reasons given in the preamble, we propose to revise Part
152 to Title 25 Chapter 1 of the Code of Federal Regulations, as set
forth below.
PART 152--ISSUANCE OF PATENTS IN FEE, CERTIFICATES OF COMPETENCY,
REMOVAL OF RESTRICTIONS, AND SALE OF CERTAIN INDIAN LANDS
Sec.
152.1 What are the definitions of the terms used in this part?
Issuing Patents in Fee, Certificates of Competency, or Orders Removing
Restrictions
152.2 Who can apply for a patent in fee?
152.3 How do I apply for a patent in fee?
152.4 What happens when I apply for a patent in fee?
152.5 Will patents in fee be issued to non-Indians and Indians with
whom a special relationship does not exist?
152.6 Who can apply for a certificate of competency?
152.7 What happens when I apply for a certificate of competency?
152.8 Can certain Osage Indian adults apply for a certificate of
competency?
152.9 Who can apply for an order removing restrictions?
152.10 How do I apply for an order removing restrictions?
152.11 What happens when I apply for an order removing
restrictions?
Order Removing Restrictions for Members of the Five Civilized Tribes
152.12 If I am a member of the Five Civilized Tribes, how do I
apply for removal of restrictions under authority other than section
2(a) of the Act of August 11, 1955?
152.13 If I am a member of the Five Civilized Tribes, what happens
when I apply for removal of restrictions under section 2(a) of the
Act of August 11, 1955?
152.14 If I am a member of the Five Civilized Tribes, can the
restrictions be removed from my land without an application?
152.15 If I am a member of the Five Civilized Tribes, what happens
when a removal of restrictions is issued to me without an
application?
152.16 If I am a member of the Five Civilized Tribes, what is the
effect of an order removing restrictions from my land under the Act
of August 11, 1955 (69 Stat. 666)?
Sales, Exchanges, and Conveyances of Trust or Restricted Lands
152.17 Can I sell, exchange, or otherwise convey my Indian land?
152.18 Can a natural guardian or person designated by the Secretary
sell my Indian land?
152.19 Can fiduciaries sell my Indian land?
152.20 Can the Secretary sell land owned by more than one person?
152.21 Can a tribe sell or exchange tribal land?
152.22 Is the Secretary's approval necessary to convey individual-
owned trust or restricted lands or lands owned by a tribe?
[[Page 34401]]
152.23 Where do I file an application for sale, exchange, or gift?
152.24 Is an appraisal necessary?
152.25 Can I negotiate a sale, gift, or exchange of my trust or
restricted lands?
152.26 How is my land advertised for sale?
152.27 What procedures are followed for an advertised sale?
152.28 What happens after the bid closing?
152.29 Can the Secretary reject bids or disapprove a sale?
152.30 Can employees of Indian Affairs bid?
152.31 Who pays for the cost of conveyance and fees?
152.32 Who pays irrigation fees and payments?
Partitions in Kind of Inherited Allotments
152.33 Can I partition my Indian lands?
Mortgages and Deeds of Trust To Secure Loans to Indians
152.34 Can I mortgage my land?
152.35 Can I make a sale on a deferred payment plan?
Denials Of Applications
152.36 When does the Secretary deny approval of my application?
152.37 Am I notified of a denial?
Receiving Information
152.38 Who can receive information regarding status of applications
for patents in fee, certificates of competency, or orders removing
restrictions of trust or restricted Indians lands?
Authority: 5 U.S.C. 301. Interpret or apply sec. 7, 32 Stat.
275; 34 Stat. 1018; sec. 1, 35 Stat. 444; sec. 1 and 2, 36 Stat.
855, as amended, 856, as amended; sec. 17, 39 Stat. 127; 40 Stat.
579; 62 Stat. 236; sec. 2, 40 Stat. 606; 68 Stat. 358; 69 Stat. 666;
25 U.S.C. 355, 372, 373, 378, 379, 404, 405, 483, unless otherwise
noted.
Cross-Reference: See part 159 and part 160 in this chapter for
further regulations regarding sale of irrigable lands.
Sec. 152.1 What are the definitions of the terms used in this part?
Agency means an Indian agency or other field unit of the Bureau of
Indian Affairs having trust or restricted Indian land under its
immediate jurisdiction.
Competent means that you posses sufficient ability, knowledge,
experience, and judgment to manage your business affairs, including the
administration,use, investment, and disposition of any property you own
and the income or proceeds derived from the property, with a reasonable
degree of prudence and wisdom to prevent the loss of such property or
benefits. (Act of August 11, 1955 (69 Stat. 666)).
Fiduciary means a person acting primarily for another's benefit
such as a trustee, guardian, or conservator.
I and my mean the Indian applicant.
Patent in fee means an instrument of conveyance issued by the
government to transfer the title of trust, or any interest in trust
land, to a non-Indian or Indian determined to be competent. A patent in
fee removes all restrictions against alienation of all restriction
property and terminates the trust responsibility of the Secretary of
the Interior for the land.
Restricted land means land or any interest therein, the title to
which is held by an individual Indian, subject to Federal restrictions
against alienation or encumbrance.
Secretary means the Secretary of the Interior or authorized
representative acting under delegated authority.
Tribe means any Indian tribe, band, nation, pueblo, community,
corporation, rancheria, colony, or other group of Indians.
Trust land means land or any interest therein held in trust by the
United States for an individual Indian or tribe.
We means the Secretary of the Interior or authorized representative
acting under delegated authority.
You means the Indian applicant.
Your refers to the Indian applicant.
Issuing Patents in Fee, Certificates of Competency, or Orders
Removing Restrictions
Sec. 152.2 Who can apply for a patent in fee?
Indians 21 years of age or over. The written application must be in
a form approved by the Secretary and filed with the agency having
immediate jurisdiction over the land.
Sec. 152.3 How do I apply for a patent in fee?
You must complete and submit a written application in the form
approved by the Secretary and file it with the agency superintendent
having immediate jurisdiction over the land.
Sec. 152.4 What happens when I apply for a patent in fee?
(a) If we determine that your are competent, we will issue you a
fee patent and give you an inventory of your estate. (Acts of Feb. 8,
1887 (24 Stat. 388), as amended (25 U.S.C. 349); June 25, 1910 (36
Stat. 855), as amended (25 U.S.C. 372); and May 14, 1948 (62 Stat. 236;
25 U.S.C. 483); and other authorizing acts.)
(b) If we deny your application, we will tell you why in a letter.
You have the right to appeal the decision under 25 CFR part 2.
(c) White Earth Reservation: We will issue a patent in fee to any
adult Indian of mixed-blood owning land within the White Earth
Reservation in the State of Minnesota. When you apply, we do not
consider your competency (Act of March 1, 1907 (34 Stat. 1015)).
(d) Fort Peck Reservation: Interests in oil and gas underlying
certain allotments on the Fort Peck Reservation were granted to certain
Indians to be held in trust for them. Provisions were made to issue
patents in fee for such oil and gas or patents in fee for land in
certain circumstances (Act of June 30, 1954 (68 Stat. 358)).
(1) Title to the entire interest in the oil and gas, underlying a
parcel of land within the Fort Peck Reservation, was conveyed by the
act in fee simple status to Indian grantees who received a patent or
patent in fee before June 30, 1954.
(2) We will convey by patent, without application, unrestricted fee
simple title to the entire interest in oil and gas granted by this act
to Indians to whom a fee patent has been issued at any time for any
land within the Fort Peck Reservation or who have been determined to be
competent.
(3) When we determine that the entire interest in a tract of land
on the Fort Peck Reservation is owned by a competent Indian grantee of
oil and gas under the act, we will issue fee patents to them, covering
all interests in the land, without application.
Sec. 152.5 Will patents in fee be issued to non-Indians and Indians
with whom a special relationship does not exist?
We will issue a patent in fee to any non-Indian, or Indian to whom
the United States owes no trust responsibility, without application,
whenever we determine that trust land, or any interest in trust land,
has been acquired through inheritance or devise.
Sec. 152.6 Who can apply for a certificate of competency?
Indians 21 years old or over, except certain adult members of the
Osage Indian Tribe as provided in Sec. 152.8, who hold land or an
interest in land under a restricted fee patent. The written application
must be in a form approved by the Secretary and filed with the agency
having immediate jurisdiction over the land.
Sec. 152.7 What happens when I apply for a certificate of competency?
(a) If we determine that you are competent, we will approve your
application, and a certificate of competency will be issued. The
delivery of the certificate will have the effect of removing the
restrictions from the described land. (Act of June 25, 1910 (36 Stat.
855), as amended (25 U.S.C. 372)).
(b) If we deny your request, we will tell you why in a letter. You
have the right to appeal this action under part 2 of this chapter.
[[Page 34402]]
Sec. 152.8 Can certain Osage Indian adults apply for a certificate of
competency?
Adult members of the Osage Indian Tribe of one-half or more Indian
blood may apply for a certificate of competency. Applications must be
in the form approved by the Secretary. If the Secretary determines that
you are competent, a certificate of competency will be issued removing
restrictions against alienation on all restricted property and
terminating the United States trust responsibility on all restricted
property. Your Osage headright interest remains under the trust
responsibility of the United States. For regulations pertaining to the
issuance of certificates of competency to adult Osage Indians of less
than one-half Indian blood, see part 154 of this chapter.
Sec. 152.9 Who can apply for an order removing restrictions?
(a) You can apply for an order removing restrictions if you are:
(1) An Indian not under legal disability under the laws of the
State where you reside or where the land is located; or
(2) A court-appointed guardian or conservator of any Indian.
(b) If you are a member of the Five Civilized Tribes, see
Sec. 152.13.
Sec. 152.10 How do I apply for an order removing restrictions?
(a) You must send a written application, in the form approved by
the Secretary, telling why you need the removal of restrictions, to the
agency having immediate jurisdiction over the lands.
(b) If you are a member of the Five Civilized Tribes, see
Sec. 152.12
Sec. 152.11 What happens when I apply for an order removing
restrictions?
(a) If we determines that you are competent or that a removal of
restrictions is in your best interest, we will approve your application
and issue an order removing restrictions from the described lands.
(b) If you are a member of the Five Civilized Tribes, see
Sec. 152.13.
(c) If we deny the application, we will tell you why in a letter.
You have the right to appeal this action under part 2 of this chapter.
Order Removing Restrictions for Members of the Five Civilized
Tribes
Sec. 152.12 If I am a member of the Five Civilized Tribes, how do I
apply for removal of restrictions under authority other than section
2(a) of the Act of August 11, 1955?
When you ask us to remove restrictions on your restricted lands
under authority other than section 2(a) of the Act of August 11, 1955
(69 Stat. 666), you may not include lands, or interest in lands,
acquired by inheritance or devise. You can apply in either of the two
following ways:
(a) If you apply for an unconditional removal, we will grant the
removal if we determine that you are competent.
(b) If you apply for a conditional removal, we will grant the
removal. The conditional order will be effective only and
simultaneously with the execution of a deed by you and upon completion
of an advertised or negotiated sale acceptable to us.
Sec. 152.13 If I am a member of the Five Civilized Tribes, what
happens when I apply for removal of restrictions under section 2(a) of
the Act of August 11, 1955?
(a) If we determine that you are competent, we will issue an order
removing restrictions having the effect stated in Sec. 152.16.
(b) If your application is rejected, this action is not subject to
administrative appeal.
(c) If the Secretary rejects, or takes no action within 90 days of
the application date, you may apply to the State district court in the
county in which you reside. If that State district court issues an
order, it will have the effect stated in Sec. 152.16.
Sec. 152.14 If I am a member of the Five Civilized Tribes, can the
restrictions be removed from my land without an application?
(a) Yes. When you are determined to be competent, section 2(b) of
the Act of August 11, 1955 (69 Stat. 666), authorizes the removal of
restrictions on property belonging to members of the Five Civilized
Tribes. The Secretary will issue an order removing restrictions without
an application. We will tell you in a letter that we intend to issue an
order removing restrictions 30 days after the date of the letter.
(b) This decision may be appealed under part 2 of this chapter
within the 30 days.
(c) All administrative appeals will postpone the issuance of this
order.
(d) An order removing restrictions will be issued when:
(1) The decision is not appealed within 30 days after the date of
the notice;
(2) Any dismissal of an appeal is not appealed within the
prescribed time limit; or
(3) The final appeal is dismissed.
Sec. 152.15 If I am a member of the Five Civilized Tribes, what
happens when a removal of restrictions is issued to me without an
application?
When an order removing restrictions is issued, under Sec. 152.14:
(a) A copy of the order will be delivered to you, or any person
acting on your behalf, and the Board of County Commissioners for the
county in which you reside.
(b) Under the terms the Act of August 11,1955 (69 Stat. 66), the
Secretary will tell you and the Board of County Commissioners in a
letter that you and/or the Board have the right to appeal within six
months of the date of this letter. The appeal must be to the State
district court for the district in which you reside. The appeal will
stay the effective date of the order until such proceedings are
concluded. If the State district court dismisses the appeal, the order
will become effective six months after the date of the letter. The
effect of the order is described in Sec. 152.16.
Sec. 152.16 IfI am a member of the Five Civilized Tribes, what is the
effect of an order removing restrictions from my land under the Act of
August 11, 1955 (69 Stat. 666)?
(a) The effective date will remove all jurisdiction and supervision
of the Bureau of Indian Affairs.
(b) Full ownership and control of money and property will be given
to you, and the Secretary will issue title documents if necessary.
(c) The Secretary may make provisions to insure repayment of money
lent to you by the Federal Government or by an Indian tribe.
(d) The interest of any lessee or permittee in any lease, contract,
or permit that is outstanding when an order becomes effective will be
preserved.
Sales, Exchanges, and Conveyances of Trust or Restricted Lands
Sec. 152.17 Can I sell, exchange, or otherwise convey my Indian land?
Trust or restricted lands acquired by allotment, devise,
inheritance, purchase, exchange, or gift may be sold, exchanged, and
conveyed by you with the approval of the Secretary or by the Secretary
with your consent under the Acts of May 27, 1902 (32 Stat. 275; 25
U.S.C. 379); May 17, 1906 (34 Stat. 197), as amended August 2, 1956 (70
Stat. 954; 48 U.S.C. 357); March 1, 1907 (34 Stat. 1018; 25 U.S.C.
405); May 29, 1908 (35 Stat. 444; 25 U.S.C. 404); June 25, 1910 (36
Stat. 855; 25 U.S.C. 372), as amended May 25, 1926 (44 Stat. 629; 48
U.S.C. 355a-355d); June 18, 1934 (48 Stat. 984; U.S.C. 464); and May
14, 1948
[[Page 34403]]
(62 Stat. 236; 25 U.S.C. 483); and other authorizing acts.
Sec. 152.18 Can a natural guardian or person designated by the
Secretary sell my Indian land?
(a) Under the Act of May 29, 1908 (35 Stat. 444; 25 U.S.C. 404), we
may sell trust or restricted land belonging to:
(1) A minor, with the consent of the natural guardian of the minor;
(2) Indian orphans without a natural guardian; and
(3) Indians who are non compos mentis or otherwise under legal
disability.
(b) The authority contained in the Act of May 29, 1908 is not
applicable to lands in Oklahoma, Minnesota, and South Dakota, nor to
lands authorized to be sold by the Act of May 14, 1948 (62 Stat. 236;
25 U.S.C. 483).
Sec. 152.19 Can fiduciaries sell my Indian land?
With our approval or consent, guardians, conservators, or other
fiduciaries appointed by State courts, or by tribal courts operating
under approved constitutions or law and order codes, may convey trust
or restricted land belonging to Indians who are minors, no compos
mentis, or otherwise under legal disability. This section is subject to
the exceptions contained in 25 U.S.C. 954(b).
Sec. 152.20 Can the Secretary sell land owned by more than one
person?
Under the Act of June 25, 1910 (36 Stat. 855), as amended (25
U.S.C. 372), lands or all interests in land may be sold if the
Secretary determines that one or more of the heirs who have inherited
trust land are incapable of managing their own affairs. This authority
does not apply to lands authorized to be sold under the Act of May 14,
1948 (62 Stat. 236; 25 U.S.C. 483).
Sec. 152.21 Can a tribe sell or exchange tribal land?
Certain tribal land may be sold or exchanged under the Acts of
February 14, 1920 (41 Stat. 415; 25 U.S.C. 294); June 18, 1934 (48
Stat. 984; 25 U.S.C. 464); August 10, 1939 (53 Stat. 1351; 25 U.S.C.
463(e)); July 1, 1948 (62 Stat. 1214); June 4, 1953 (67 Stat 41; 25
U.S.C. 293(a)); July 28, 1955 (69 Stat. 392), as amended August 31,
1964 (78 Stat. 747; 25 U.S.C. 608-608c); June 18, 1956 (70 Stat. 290;
25 U.S.C. 403a-2); July 24, 1956 (70 Stat. 626); May 19, 1958 (72 Stat.
121; 25 U.S.C. 463, Note); September 2, 1958 (72 Stat. 1762); April 4,
1960 (74 Stat. 13); April 29, 1960) 74 Stat. 85); December 11, 1963 (77
Stat. 349); August 11, 1964 (78 Stat. 389); January 12, 1983 (96 Stat.
2517, 25 U.S.C. 2201), and under other authorizing acts. Except as
otherwise provided by law, the regulations in this part 152 apply to
sale or exchanges of tribal land.
Sec. 152.22 Is the Secretary's approval necessary to convey
individual-owned trust or restricted lands or lands owned by a tribe?
(a) Individual lands. Yes, except inherited lands of the Five
Civilized Tribes, see Sec. 152.12. Influencing an Indian to execute an
instrument purporting to convey any interest in trust land, or the
offering of any instrument for record is prohibited, and criminal
penalties may be incurred. (See 25 U.S.C. 202 and 348.)
(b) Tribal lands. Yes, except where acts of Congress authorize
sales without approval. (See 25 U.S.C. 177.)
Sec. 152.23 Where do I file an application for sale, exchange, or
gift?
Applications must be filed in a form approved by the Secretary with
the agency having immediate jurisdiction over the land. Applications
may be approved if the transaction appears to be in the long-range best
interest of the owner or owners, or under conditions in Sec. 152.25(d).
Sec. 152.24 Is an appraisal necessary?
Yes. Except as otherwise provided by the Secretary, we must do an
appraisal to determine the fair market value before making or approving
a sale, exchange, or other transfer of title of trust or restricted
land.
Sec. 152.25 Can I negotiate a sale, gift, or exchange of my trust or
restricted lands?
Sales, exchanges, and gifts specifically described in paragraphs
(a), (b), (c), and (d) of this section may be negotiated; all other
sales must be by advertised sale, or as determined by the Secretary.
With the approval of the Secretary:
(a) Consideration not less than the appraised fair market value.
You may negotiate and sell trust or restricted land for not less than
the appraised fair market value when:
(1) The sale is to the United States, States, or political
subdivisions, or sale for a public purpose.
(2) The sale is to the tribe or another Indian; or
(3) The Secretary determines it is impractical to advertise.
(b) Exchange at appraised fair market value. You may exchange trust
or restricted land in combination with other things of value. The value
you receive in the exchange must be substantially equal to the
appraised fair market value of the consideration given by you.
(c) Sale to co-owners. You may negotiate and sell trust or
restricted land to a co-owner. The consideration may be less than the
appraised fair market value, if we determine there is a special
relationship between the co-owners or special circumstances exist.
(d) Gifts and conveyances for less than the appraised fair market
value. You may convey trust or restricted land for less than the
appraised fair market value or for no consideration, when:
(1) The prospective grantee is your spouse, brother, sister, lineal
ancestor of Indian blood, or lineal descendant;
(2) Some other special relationship exists between you and grantee;
or
(3) The Secretary determines that special circumstances exist that
warrant the approval of the conveyance.
Sec. 152.26 How is my land advertised for sale?
(a) Once your application is approved, a notice of sale will be
published not less than 30 days prior to the date fixed for the sale. A
shorter period may be authorized by the Secretary.
(b) The notice of sale will include:
(1) Terms, conditions, place, date, hour, and methods of sale,
including explanation of auction procedures set out in
Sec. 152.27(b)(2);
(2) Where and how bids must be submitted;
(3) A warning to all bidders against violation of 18 U.S.C. 1860
prohibiting unlawful combination or intimidation of bidders or
potential bidders; and
(4) Description of tracts, all reservations to which title will be
subject, any restrictions and encumbrances of record with the Bureau of
Indian Affairs, and any other information that may improve sale
prospects.
Sec. 152.27 What procedures are followed for an advertised sale?
(a) Advertised sales are by sealed bids except as provided in this
paragraph:
(1) Bids, along with a certified check, cashier's check, money
order, or U.S. Treasury check, payable to the Bureau of Indian Affairs,
for not less than 10 percent of the amount of the bid, must be enclosed
in a sealed envelope marked as prescribed in the notice of sale. A cash
deposit may be submitted in lieu of these negotiable instruments at the
bidder's risk. Tribes submitting bids under this paragraph may
guarantee the required 10 percent deposit by an appropriate resolution.
(2) The sealed envelopes containing the bids will be publicly
opened at
[[Page 34404]]
the time fixed for sale. The bids will be announced and appropriately
recorded.
(b) when the Secretary recognizes that a tribe or a tribal member
has a valid interest in acquiring the trust or restricted lands offered
for sale, the following apply:
(1) With the consent of the owner and when the notice of sale so
states, the tribe or tribal members have the right to meet the high
bid.
(2) An oral auction may be held following the bid opening if:
(i) The tribe is not the highest bidder;
(ii) One or more acceptable sealed bids are received; or
(iii) When so stated in the notice of sale.
(c) Bidding in the auction will be limited to the tribe and to
those who submitted sealed bids at 75 percent or more of the appraised
value of the land being auctioned. At the conclusion of the auction,
the highest bidder must increase his deposit to not less than 10
percent of his auction bid.
Sec. 152.28 What happens after the bid closing?
(a) The apparent highest acceptable bid will be publicly announced.
The deposits submitted by unsuccessful bidders will be returned
immediately. The apparent successful bidder's deposit will be held in a
special account.
(b) If the highest bid received is less than the appraised fair
market value of the land, the Secretary, with the consent of the owner,
may accept that bid if:
(1) The amount approximates said appraised fair market value; and
(2) The amount is the highest price that may be realized.
(c) The Secretary will notify the apparent successful bidder that
the remainder of the purchase price must be submitted within 30 days.
(1) The Secretary may extend the time for payment of the balance
due upon showing of cause.
(2) If the balance due is not paid within the time allowed, the bid
will be rejected, and the apparent successful bidder's 10 percent
deposit will be forfeited to the landowner.
(d) The issuance of the patent or delivery of a deed to the
purchaser will not be authorized until the balance of the purchase
price has been paid. The fee patent may be ordered in cases where the
purchaser is obtaining a loan from an agency of the Federal Government,
and that agency has given the Secretary a commitment that the balance
due will be paid when the fee patent is issued.
Sec. 152.29 Can the Secretary reject bids or disapprove a sale?
Yes. The Secretary reserves the right to reject any and all bids
before or after the award or prior to the issuance of a patent or
delivery of a deed, when it has been determined the rejection is in the
best interests of the Indian owner.
Sec. 152.30 Can employees of Indian Affairs bid?
No. No person employed in Indian Affairs will directly or
indirectly bid, make, or prepare any bid, or assist any bidder in
preparing his bid. Sales between Indians, either of whom is an employee
of the U.S. Government, are governed by the provisions of part 140 of
this chapter (see 25 U.S.C. 68 and 441).
Sec. 152.31 Who pays for the cost of conveyance and fees?
(a) Under the Act of February 14, 1920 (41 Stat. 415), as amended
by the Act of March 1, 1933 (47 Stat. 1417; 25 U.S.C. 413), the
Secretary may collect from a purchaser reasonable fees for work
performed or expense incurred in the transaction. The amount collected
will be deposited to the credit of the United States as general fund
receipts, except as stated in paragraph (b) of the section.
(1) The amount of the fee will be $22.50 for each transaction.
(2) We may waive or reduce the fee to a lesser amount if justified.
(b) Subject to our approval, an alternate schedule of fees may be
established if the cost of the work performed or expenses incurred are
to be paid with tribal funds. Part of the fees may be credited to the
tribe if appropriate.
(c) The collection of cost from the tribe may be waived if the
tribe is the purchaser.
Sec. 152.32 Who pays irrigation fees and payments?
Under the Act of July 1, 1932 (47 Stat. 564; 25 U.S.C. 386a),
collection of all construction costs against any Indian-owned lands
within Indian irrigation projects is deferred as long as Indian title
has not been extinguished. This statute applies only where the land is
owned by Indians either in trust or restricted status.
(a) Any person, whether Indian or non-Indian, acquiring Indian
lands that are a part of an Indian Irrigation project must enter into
an agreement to:
(1) Pay the pro rata share of the construction of the project
chargeable to the land;
(2) Pay all construction costs that accrue in the future; and
(3) Pay all future charges assessable to the land which are based
on the annual cost of operation and maintenance of the irrigation
system.
(b) Any operation and maintenance charges that are delinquent when
Indian land is sold will be deducted from the proceeds of sale unless
other acceptable arrangements are made to provide for the payment prior
to the approval of the sale.
(c) A lien clause covering all unpaid irrigation construction
costs, past and future, will be inserted in the patent or other
instrument of conveyance issued to all purchasers of restricted or
trust lands that are under an Indian irrigation project.
Partitions in Kind of Inherited Allotments
Sec. 152.33 Can I partition my Indian lands?
(a) Land may be partitioned without an application if we find that
any one or more inherited trust allotments are capable of partition in
kind to the advantage of the heirs regardless of their competency.
Patents in fee will be issued to the competent heirs for the lands set
apart to them. The trust period will terminate in accordance with the
terms of the original patent or order of extension of the trust period
set out in the patent. (Act of May 18, 1916, (39 Stat. 127; 25 U.S.C.
378)). The authority contained in the Act of May 18, 1916, does not
apply to lands authorized to be sold by the Act of May 14, 1948, nor to
land held in restricted fee status.
(b) Heirs of a deceased allottee may submit a written application
on an approved form for a partition of their trust or restricted land.
If we approve the partition, new patents or deeds will be issued to the
heirs for the portions set aside to them. If title to the allotment is
held as restricted fee, a partition may be accomplished by the heirs
executing approved deeds to the other heirs for their respective
portions.
Mortgages and Deeds of Trust To Secure Loans to Indians
Sec. 152.34 Can I mortgage my land?
Yes. With the Secretary's approval, you may execute a mortgage or
deed of trust to your land. The Secretary will secure appraisal
information prior to approval of the mortgage or deed of trust. Such
lands will be subject to foreclosure or sale, according to the terms of
the mortgage or deed of trust, and in accordance with the laws of the
State in which the lands are located. For the purpose of foreclosure or
sale proceedings under this section, you will be regarded as vested
with unrestricted fee simple title to the lands (Act of March 29, 1956)
(70 Stat. 62; 25 U.S.C. 483a).
[[Page 34405]]
Sec. 152.35 Can I make a sale on a deferred payment plan?
Yes, when you and purchaser desire. The terms will be set out in a
memorandum of sale which constitutes a contract for payment in full and
delivery of title. The executed deed will be held by the superintendent
to be delivered only upon full compliance with the terms of sale.
Request for fee patent will be made only upon full compliance with the
terms of the sale. As required by the Act of June 25, 1910 (36 Stat.
855), as amended (25 U.S.C. 372); the terms of the sale will require
the purchaser to pay not less than 10 percent of the purchase price in
advance. Terms for the payment of the remaining installment, plus
interest, must be acceptable to the Secretary and the Indian owner. If
the purchaser defaults on any deferred payment plan in the first or
subsequent payments, all payments, including interest, previously made
will be forfeited to the Indian owner.
Denials of Applications
Sec. 152.36 When does the Secretary deny approval of my application?
The Secretary denies any request under this part if a determination
shows that it will adversely affect the best interest of other Indians,
or the tribe.
Sec. 152.37 Am I notified of a denial?
Yes, the Secretary makes denials in a written letter. You have the
right to appeal the decision under part 2 of this chapter.
Receiving Information
Sec. 152.38 Who receives information regarding status of applications
for patents in fee, certificates of competency, or orders removing
restrictions of trust or restricted Indian lands?
(a) The status of applications by Indians for patents in fee,
certificates of competency, or orders removing restrictions must be
disclosed to:
(1) Employees of the Department of the Interior whose duties
require that the information be disclosed to them;
(2) The applicant or his attorney, upon request;
(3) Members of Congress on behalf of the applicant; and
(4) Owners of trust or restricted land whose property would be
affected by the termination of trust or restricted status of the land
covered by the application.
(b) All other persons, upon request and only after a patent in fee,
certificate of competency, or an order removing restrictions has been
issued, according to the following timeframes:
(1) 15 days after the fee patent has been issued by the Bureau of
Land Management;
(2) 15 days after issuance of a certificate of competency or order
removing restrictions; or
(3) After the application has been rejected, and you have been
notified.
Dated: June 10, 1996.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 96-16037 Filed 7-1-96; 8:45 am]
BILLING CODE 4310-02-M
