The majority of Indian probate cases arise under 25 U.S.C. 372-373. Regulations implementing the hearing aspect of the Department's probate function under these statutes are found at 43 C.F.R. 4.200-4.282. Regulations implementing the appellate aspect of the probate function are found at 43 C.F.R. 4.310-4.318, and 4.320-4.323.
When an Indian who owns trust property dies, the Bureau of Indian Affairs (BIA) prepares information relating to the person's family history and property holdings for submission to an Administrative Law Judge (ALJ) or Indian Probate Judge (IPJ) in the Probate Hearings Division, Office of Hearings and Appeals. Each ALJ and IPJ is assigned a geographic area over which she or he has probate jurisdiction. The Judge will conduct a probate hearing at a location convenient for the family members, frequently on the reservation. After the hearing, the Judge will issue an initial decision. A party who disagrees with the initial decision must seek rehearing from the Judge before appealing to the Board. See 43 C.F.R. 4.241 and 4.320; Estate of Albert William Cobe, 28 IBIA 282 (1995).
The Department is responsible for determining the heirs of deceased members of the White Earth Band of the Minnesota Chippewa Tribe for purposes of determining eligibility to receive compensation under the White Earth Reservation Land Settlement Act of 1985, 25 U.S.C. 331 note. These cases are not full probates--they only determine heirship. Initial heirship determinations are made under 43 C.F.R. 4.350-4.355, and 4.357. These determinations are made by an administrative judge in OHA’s Departmental Cases Hearings Division. Appeals from heirship determinations may be taken to the Board under 43 C.F.R. 4.356.
There are several statutes which authorize particular tribes to purchase certain inherited interests in land on their reservations. Initial decisions as to a tribe's right to purchase such interests, and the fair market value of the interests, are made by an ALJ under regulations found in 43 C.F.R. 4.300-4.308. These decisions are appealable to the Board under 43 C.F.R. 4.320.
The Secretary has the responsibility to approve any will executed by a member of the Osage Nation of Oklahoma which devises trust property. Under regulations found in 25 C.F.R. Part 17, a hearing is held in these cases by an attorney from the Department's Tulsa, Oklahoma, Field Solicitor's Office. The attorney issues a recommended decision to the Superintendent, Osage Agency, BIA. The Superintendent issues a decision either approving or disapproving the will.
The Superintendent's decisions in Osage will contests may be appealed directly to the Board under 25 C.F.R. 17.14. See In Re Will of Louis Claremore Walker, 43 IBIA 5 n. 1 (2006). Once the Department has determined whether or not to approve the will, and any judicial challenges to the Department's determination have been concluded, the will goes to the Oklahoma State court system for actual probate.
Restricted property held by members of the Five Civilized Tribes (Cherokee, Chickasaw, Creek, Choctaw, and Seminole) are probated in the Oklahoma State courts. See 25 C.F.R. Part 16. The Board has no role in these probate proceedings.
With the exception of the determination of heirs made under the White Earth Reservation Land Settlement Act, the Department probates only trust property. Therefore, when an Indian dies leaving both trust and non-trust property, another court must probate the non-trust property. This may be a tribal court, a CFR court or a state court. The law applied in tribal or state courts may be different than the law applied in the Department's probate decisions. For instance, under tribal law, a person's heirs may be determined differently than under Federal law, or standards may differ as to what constitutes a will or proper execution of a will.