Bush administration finalizes probate rule

Politics | Trust

Wednesday, November 12, 2008

Meeting a last-minute deadline, the Bush administration has finalized a comprehensive set of regulations that seek to reform the probate of Indian lands.

After more than two years of development, the 200-page notice of the final rule is being published in the Federal Register tomorrow.It becomes effective on December 15, only about a month before president-elect Barack Obama takes office.

Obama, who won overwhelming support across Indian Country, is already reviewing some of President Bush's regulatory initiatives, with an eye towards changing or rescinding some of them. It's not known at this time whether the probate rule, or any others affecting Indian issues, will be affected.

"The purpose of today's final rulemaking is to allow the Department of the Interior to better meet its trust responsibilities and to carry out the policies established by Congress to strengthen tribal sovereignty," the notice states. "This rulemaking will provide the department with the tools to more effectively and consistently manage trust assets and better serve its trust beneficiaries (i.e., Indian tribes and individual Indians)."

Though the administration pitched the rule as a way to streamline and simplify the probate process, some organizations like the Indian Land Working Group expressed concerns about deadlines being imposed on landowners and their heirs. Among other changes, the regulations shorten the time frames for appeals and submissions of information to the Bureau of Indian Affairs and the Department of the Interior.

According to the notice, commenters objected to the 30-day deadlines adopted by the rule but the department rejected the concerns. Other deadlines related to probates, appraisals and appeals have been shortened even further, to 20-day and 15-day periods.

"The department weighed the interests of those who may want to appeal and the potential for circumstances such as those identified by the commenter against the interests of those waiting for distribution of the probated assets," the notice states.

At the same time, the final rule allows the BIA as much time as it wants to prepare a probate package and even extends one deadline for third-party creditors who make claims on an Indian landowner's estate. The BIA also will be able to take 180 days to review a tribal probate code, even though some commenters requested a shorter period.

The probate changes were first proposed in August 2006. The administration extended the public comment period twice, though the final one closed over a year ago, in March 2007.

The lengthy delay meant the rule had to be published in the Federal Register this month in order to meet a deadline imposed by the White House. "Except in extraordinary circumstances, regulations to be finalized in this administration should be proposed no later than June 1, 2008, and final regulations should be issued no later than November 1, 2008," chief of staff Josh Bolten said in a May 9 memo.

Jim Cason, the associate deputy secretary at Interior, signed the final rule on October 2. Review by the White House Office of Management and Budget likely delayed its final publication in the Federal Register.

"Anyone who understood existing regulations should be braced for sweeping procedural changes," wrote Jodi Rave, the Native issues reporter for The Missoulian newspaper in Montana, in an October 3 column.

Rave, a member of the Mandan, Hidatsa and Arikara Nation in North Dakota, said she needed 60 days to appeal a probate ruling involving her mother's estate. "It took more than 30 days just to get estate documents from the Bureau of Indian Affairs office at Fort Berthold."

Though she was successful in resolving the issue, she said others in Indian Country might not do so well under the new rule. "With shortened probate-review periods just around the corner, thousands of other landowners aren't going to be as lucky," Rave wrote.

Federal Register Notice:
Indian Trust Management Reform