Rule2021-17377
Indian Land Title and Records
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 16, 2021
Effective
September 15, 2021
Issuing agencies
Interior DepartmentIndian Affairs Bureau
Abstract
This final rule revises Bureau of Indian Affairs (BIA) regulations governing the Land Title and Records Office (LTRO) to reflect modernization of the LTRO. The LTRO maintains title documents for land held in trust or restricted status for individual Indians and Tribes (Indian land). This rule replaces outdated provisions and allows for more widespread efficiencies by reflecting current practices, while creating a framework for future LTRO operations.
Full Text
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<title>Federal Register, Volume 86 Issue 155 (Monday, August 16, 2021)</title>
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[Federal Register Volume 86, Number 155 (Monday, August 16, 2021)]
[Rules and Regulations]
[Pages 45631-45644]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-17377]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 150
[212A2100DD/AAKC001030/A0A501010.999900]
RIN 1076-AF56
Indian Land Title and Records
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Final rule.
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SUMMARY: This final rule revises Bureau of Indian Affairs (BIA)
regulations governing the Land Title and Records Office (LTRO) to
reflect modernization of the LTRO. The LTRO maintains title documents
for land held in trust or restricted status for individual Indians and
Tribes (Indian land). This rule replaces outdated provisions and allows
for more widespread efficiencies by reflecting current practices, while
creating a framework for future LTRO operations.
DATES: This rule is effective September 15, 2021.
FOR FURTHER INFORMATION CONTACT: Elizabeth Appel, Director, Office of
Regulatory Affairs & Collaborative Action, (202) 273-4680;
<a href="/cdn-cgi/l/email-protection#ed888184978c8f889985c38c9d9d8881ad8f848cc38a829b"><span class="__cf_email__" data-cfemail="11747d786b70737465793f706161747d517378703f767e67">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background and Summary of Rule
II. Changes from Proposed Rule to Final Rule
III. Response to Comments
IV. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866 and E.O. 13563)
B. Regulatory Flexibility Act
C. Small Business Regulatory Enforcement Fairness Act
D. Unfunded Mandates Reform Act
E. Takings (E.O. 12630)
F. Federalism (E.O. 13132)
G. Civil Justice Reform (E.O. 12988)
H. Consultation With Indian Tribes (E.O. 13175)
I. Paperwork Reduction Act
J. National Environmental Policy Act
K. Effects on the Energy Supply (E.O. 13211)
L. Clarity of this Regulation
M. Public Availability of Comments
I. Background
The LTRO maintains title documents for land that the United States
holds in trust or restricted status for individual Indians or Tribes
(Indian land), roughly similar to how counties and other localities
maintain title documents for fee land within their jurisdictions.
Several Acts authorize BIA maintenance of these title records. See,
e.g., 25 U.S.C. 5, 9; 64 Stat. 1262; 34 Stat. 137; 35 Stat. 312; and 38
Stat. 582, 598.
The LTRO has several physical offices throughout the country. These
LTRO offices are the successors to the ``title plants'' that were
established by regulation in 1965 to serve what were then BIA ``area
offices.'' See 30 FR 11676 (September 11, 1965). Updates to the
regulations in 1981 defined the role of the LTRO and assigned each LTRO
office a geographic service area, containing certain BIA area offices
or Tribal reservations. See 46 FR 47537 (September 29, 1981), later
redesignated at 47 FR 13327 (March 30, 1982).
[[Page 45632]]
The Department published a proposed rule on December 11, 2020 (85
FR 79965) and accepted comments on the proposed rule until February 9,
2021. Section II of this document provides an overview of the final
rule. Section III of this document summarizes the comments received on
the proposed rule and responds to those comments. Section IV of this
document details changes made from the proposed rule to the final rule
stage.
II. Overview of Final Rule
The regulations being finalized today replace those that have been
in place since 1981 (though redesignated from 25 CFR part 120 to 25 CFR
part 150). Now, 40 years later, BIA ``area offices'' are BIA Regions,
and the LTRO maintains title documents primarily through an electronic
system: The Trust Asset Accounting Management System (TAAMS). Each LTRO
office records land title documents that are primarily within its
designated geographic area; however, it is BIA's vision that,
eventually, all title documents will be electronically stored and
accessible to LTRO offices regardless of geographic area.
The rule modernizes the LTRO regulations to provide a framework for
continued operations and future electronic maintenance of most title
documents. This approach will more efficiently address title-related
actions that support Indian land transactions (such as a title
examination to take land into trust) by allowing workloads to be
shifted among LTRO offices to promptly address each request and prevent
the risk of any backlogs. The rule continues to provide that each LTRO
office is primarily responsible for certain geographic areas, but
rather than specifying those LTRO offices in the rule, it instead
points to a web page where BIA can keep the list accurately updated.
The rule also addresses changes that have evolved over the past 40
years that have removed requirements for Secretarial approval of
certain title documents in support of Tribal self-governance and self-
determination (e.g., individual leases under approved Helping Expedite
and Advance Responsible Tribal Homeownership (HEARTH) Act regulations)
by clarifying that these documents must still be recorded in the LTRO
because the documents affect who is authorized to use Indian land.
The rule also makes more transparent the LTRO's role as a support
office to BIA and, with respect to title-related matters related to
probate, the Office of Hearings and Appeals (OHA). Generally, the
Realty staff in BIA are the primary liaison to the LTRO, as the Realty
staff are responsible for processing land transactions requested by
Indian and Tribal landowners. Similarly, the rule would clarifies the
LTRO's role with respect to any defects to title: The LTRO provides a
notation of the defect in the record of title, but the originating
office is responsible for providing the LTRO with a corrected title
document for the LTRO to record.
Finally, the rule allows the BIA Director to delegate recording
responsibilities to another office for certain transactions on an as-
needed basis. This capability provides flexibility to facilitate future
electronic recording capabilities for efficiency.
The following table shows changes from the current regulation to
the final rule.
------------------------------------------------------------------------
Description of
Current 25 CFR Sec. New 25 CFR Sec. changes
------------------------------------------------------------------------
150.1 Purpose and scope......... 150.1 What is the Provides more
purpose of this general
part? description of
responsibilities
(e.g., to account
for other types
of reports beyond
land title status
reports that LTRO
provides).
150.2 Definitions............... 150.2 What terms Alphabetizes
do I need to terms.
know? Adds definitions
for ``certify,''
``certified
copy,''
``Certifying
Officer,''
``defect'' or
``title defect,''
``I'' or ``you''
(for plain
language
purposes),
``inherently
Federal
function,''
``land,''
``Office of
Hearings and
Appeals (OHA),''
``Probate
Inventory
Report,''
``record of
title,''
``Region,'' and
``title.''
Deletes
definitions of
``Administrative
Law Judge,''
``Commissioner,''
``land,'' and
``Superintendent.
''
Revises definition
of ``Agency'' to
clarify that
contracting and
compacting Tribes
are included.
Revises definition
of ``Indian
land'' to limit
to trust or
restricted land
only, in
accordance with
other regulatory
definitions,
while moving
provisions
regarding other
categories of
land to proposed
Sec.
150.201(c).
Revises definition
of ``recording''
to move
substantive
statement as to
the significance
of recording a
document to the
body of the
regulation at
proposed Sec.
150.101.
Revises definition
of ``title
document'' to
provide examples.
Revises definition
of ``title
examination'' to
add detail.
Revises definition
of ``Tribe'' to
cite the List Act
of 1994.
150.3 May Tribes New section to
administer this address that
part on LTRO's Tribes may
behalf? compact or
contract for LTRO
functions under
Tribal self-
governance and
self-
determination
compacts and
contracts.
150.101 What is New section to
the purpose of address the
the record of significance of
title? recording a
document in the
record of title.
150.3 Maintenance of land 150.102 Who No substantive
records and title documents. maintains the change.
record of title?
150.103 What New section to
services does the provide a list of
LTRO perform to services that the
maintain the LTRO performs.
record of title?
150.104 How does New section to
the LTRO maintain address that the
the record of LTRO primarily
title? maintains the
record of title
electronically.
[[Page 45633]]
150.4 Locations and service 150.105 Are Revises to provide
areas for land titles and certain LTRO flexibility to
records offices. offices allow for
responsible for workload sharing
certain across LTRO
geographic areas? offices while
noting LTRO
offices have
primary
responsibility
for certain
geographic areas.
Replaces the list
of addresses for
each LTRO office
with a webpage
for a more
frequently
updated list of
each LTRO
office's area of
primary
geographic area.
150.5 Other Bureau offices with .................. Deleted because
title service responsibility. this section is
no longer
necessary.
150.6 Recordation of title 150.201 What is Removes language
documents. recorded in the assuming hard
record of title? copy transmission
of documents.
Adds language to
account for the
need to record
certain documents
that are not
subject to
Secretarial
approval.
Adds that LTRO
offices may also
maintain
documents
demonstrating the
rights of use,
occupancy, and/or
benefit of
certain Tribes to
non-Indian land
and certain
documents related
to Indian land
that are not
title documents.
150.202 Must I New section to
check with any specify that in
other some instances,
governmental due diligence may
office to find require
title documents examination of
for Indian land? other records of
title for Indian
land.
150.203 Who may Clarifies the role
submit a title of the LTRO as a
document for service office
recording? for BIA Agencies,
Regions, and OHA,
who act as the
primary liaison
to Indian and
Tribal
landowners.
150.204 Who Clarifies that the
records title BIA Director may
documents? delegate the
recording
function to other
Agency offices by
documenting the
delegation and
types of
transactions to
which it applies
in the Indian
Affairs Manual.
150.205 What are New section to
the minimum clarify what must
requirements for be included in a
recording a title title document
document? that is approved
by the Secretary
and what must be
included in title
documents that
are deemed
approved.
150.7 Curative action to correct 150.206 What Revises to provide
title defects. actions will LTRO that LTRO offices
take if it will no longer
discovers a title complete
defect? administrative
modifications;
rather they will
put a notation in
the record of
title and contact
the originating
office for
correction.
150.8 Title status reports...... .................. Incorporated into
new Sec.
150.302.
150.9 Land status maps.......... .................. Incorporated into
new Sec.
150.302.
150.10 Certification of land 150.301 How does Revised for plain
records and title documents. LTRO certify language.
copies of title
documents?
150.302 What Lists the universe
reports does the of reports that
LTRO provide? the LTRO may
provide for
Indian land.
150.11 Disclosure of land 150.303 Who may Revises to include
records, title documents, and request and the categories of
title reports. receive copies of persons/entities
title documents that may obtain
in the record of information under
title or reports current laws
from LTRO without including the
filing a Freedom American Indian
of Information Probate Reform
Act request? Act of 2004, 25
U.S.C. 2204.
150.304 Where do I New section to
request copies of clarify that the
title documents BIA Agency or
or reports from Region is the
LTRO? liaison to the
LTRO.
150.305 What New section to
information must list what
I provide when information BIA
requesting copies will require in
of title order to identify
documents and the land for
reports? which a report is
being requested.
150.306 Will I be New section to
charged a fee for provide that the
obtaining copies LTRO may charge
of records? fees in
accordance with
the Freedom of
Information Act
fee schedule, but
will not charge
fees to Indian or
Tribal
landowners.
150.401 Who owns New section to
the records clarify what
associated with records are
this part? Federal records
as opposed to
Tribal records in
cases where a
Tribe has
contracted or
compacted for
LTRO functions.
150.402 How must New section
records regarding
associated with preservation
this part be requirements for
preserved? Federal records.
150.403 How does New section
the Paperwork required because
Reduction Act the regulation
affect this part? imposes an
information
collection by
requiring
individuals to
provide certain
information in
order to obtain
copies of
records.
------------------------------------------------------------------------
III. Response to Comments
The Department hosted two Tribal consultation sessions on this
proposed rule and received written submissions from 12 Tribes. During
the public comment period, the Department also received nine comments
from individuals, Indian housing and homeownership organizations, title
companies, and capital companies. Of the 21 total written submissions,
several, including half of the Tribes who commented, expressed general
support for the regulatory revisions as necessary for the proper
functioning of LTROs and to account for technological improvements and
policy changes throughout Indian country. All provided additional
comments and suggestions. The Department appreciates this input
[[Page 45634]]
and provides its responses organized by subpart, below.
A. Comments on Subpart A--Purpose and Definitions
1. Definition of ``Indian Land''
One title insurance company that commented asked that the phrase
``or in Federal law'' be removed from the definition of ``Indian land''
because, according to the commenter, that phrase could be construed to
mean the Non-Intercourse Act at 25 U.S.C. 177. The commenter stated
that the consequence of that interpretation would be that ``Indian
land'' would include title documents to Tribal fee land and, arguably,
could allow LTRO to take the position that the world has constructive
notice of that Tribal fee land recorded in the Indian land record of
title, even if it is not recorded in the county record of title.
Response: The phrase ``or in Federal law'' captures restrictions on
alienation for certain Tribes that may not be stated in the conveyance
instrument but apply as a matter of Federal law due to court order or
otherwise. The clear trend in the case law is that the Non-Intercourse
Act does not apply to fee land, whether on-reservation or off-
reservation. This trend is consistent with BIA's authority for
approving transactions that affect title.
A Tribe requested clarification that Indian land includes mineral
(subsurface) interests, pointing out that the current regulations
include a definition for ``land'' as meaning real property and without
that specification, the term ``Indian land'' is ambiguous as to whether
it includes the subsurface or mineral estate and whether ``title''
encompasses mineral estates that have been severed from surface
estates.
Response: The final rule adds the definition for land as including
surface and/or subsurface interests.
2. ``Title Document''
One Tribe stated their agreement with the proposed rule's inclusion
of examples of title documents in the definition of ``title document''
as adding clarity. This Tribe also agreed with the proposed rule's
removal of the provision in ``title document'' as including only
documents required to be recorded by regulation or Bureau policy as
appropriate to accord a full and accurate depiction of Indian land in
the chain of title.
Response: The final rule includes the proposed rule's definition of
``title document.''
3. Comments Requesting New Definitions
a. ``Inherently Federal Function''
A few Tribes and one title insurance company commenter requested a
definition be added for ``inherently Federal function.'' On Tribe
requested that the term be interpreted to exclude certain items (i.e.,
FOIA and records management).
Response: The final rule adds a definition of ``inherently Federal
function'' to match the definition of the term provided in the Indian
Self-Determination and Education Assistance Act (ISDEAA). More
specificity on what constitutes an inherently Federal function is
necessarily a case-by-case examination because different laws apply to
different Tribes.
b. ``Individual Indian''
An individual commenter requested a new definition for ``individual
Indian'' or ``Indian owner'' because individuals may own Indian land
and their rights to challenge decisions related to title should be
acknowledged. This commenter also stated that the regulations imply
that individual Indians' fiduciary protections and rights are
subordinated to Tribes because, for example, the term ``Tribe'' is
defined while the term ``individual Indian'' is not.
Response: The term ``individual Indian'' is not defined in the
regulation because it appears only in the definition of ``Indian land''
and the definition of ``Probate Inventory Report,'' both of which can
be understood without defining ``individual Indian.'' Individual
Indians' rights as landowners to challenge Federal decisions regarding
title are governed by different regulations, such as 25 CFR part 2,
Appeals from Administrative Actions. Nothing in the final rule for 25
CFR part 150 subordinates individual Indians' fiduciary protections and
rights to Tribes. The term ``Tribe'' is defined because that term
appears in provisions relating to Tribes as sovereign governments
(e.g., provisions relating to compacting or compacting Federal
functions of an LTRO, provisions relating to recordation of leases
between Tribes and Tribal Energy Development Organizations).
B. Comments on Subpart B--Record of Title
1. Purpose of the Record of Title
Two title insurance company commenters asked how constructive
notice works in the context of an LTRO, as far as whether the
recordation of a title document in the LTRO gives the real property
interest priority over interests recorded later or whether notice
impacts priority of interests.
Response: Recordation of title documents for Indian land is
different from recordation of title documents for fee land in county
records. Priority is not generally an issue in recordation of title
documents for Indian land because the Department conducts a title
examination before taking land into trust or restricted status, and the
LTRO relies upon the date of Departmental approval (or other applicable
date when Departmental approval is not required) as the valid and
effective date of the transaction. In other words, there is no
significance to the date of recording in the LTRO the way there may be
significance to the date of recording title documents to fee land in
county records. In response to this comment, the final rule deletes the
statement from Sec. 150.101 that the record of title provides the
public with constructive notice; rather, only certain entities/
individuals have access to information in the record of title. See
Sec. 150.303.
2. LTRO Services
Two title insurance company commenters requested the regulations
include a specific timeframe for LTRO to issue title status reports
(TSRs). Another commenter stated that the rule should impose timeframes
on the LTRO and provide recourse for delays.
Response: The LTRO processes mortgage title requests for TSRs
within two working days of receipt from the BIA agency. This timeframe
is included in policy but not the regulations to allow flexibility to
change as circumstances require for internal management of the LTRO,
without undergoing a rulemaking. Requestors should coordinate with
their BIA agency contact to ensure that a request for a TSR has been
submitted to LTRO.
Two title insurance company commenters suggested including
uncertified TSRs in addition to certified TSRs in Sec. 150.103 to be
consistent with the language in Sec. 150.302(b).
Response: The final rule adds ``uncertified Title Status Reports''
for consistency with Sec. 150.302(b).
One individual commenter recommended adding a subpart for LTRO to
record title transfers resulting from historic sales where a ``reserve
period'' is included for the original ``provisional sale'' only upon
assurance that the buyer and seller negotiated the final disposition
upon expiration of the ``reserve period.''
Response: This comment appears to relate to terms of a title
transfer, which
[[Page 45635]]
is beyond the scope of this regulation. The commenter should raise this
comment with their local BIA agency staff.
An individual commenter asked whether it would be LTRO's or the BIA
agency's responsibility to notify previously recognized owners that a
correction to a probate inventory report is being proposed.
Response: If LTRO discovers an error in a probate inventory report
that impacts Indian land ownership, then the LTRO notifies the BIA
agency realty staff in writing, and the BIA agency works with the
Office of Hearings and Appeals, to notify landowners and make a
correction as appropriate.
3. Maintaining the Record of Title
Two title insurance company commenters requested that the
Department address any efforts to digitize physical copies and confirm
that physical documents are historical documents only. These commenters
and a homeownership organization requested clarification that the LTRO
is currently digitizing all documents it now receives.
Response: The LTRO has digitized nearly all Indian land title
records; however, there remain some non[hyphen]imaged (i.e., non-
digitized) records. The LTRO digitizes all documents it currently
receives so that they can be stored electronically in the record of
title and will work with BIA Realty to ensure all known remaining non-
digitized records are digitized.
One Tribe described the history of its agency's recordkeeping on
well locations and lease information.
Response: The Tribe's comment has been shared with the relevant
agency.
4. LTRO Responsibility for Certain Geographic Areas
Section 150.105 of the proposed rule provided that staff at each
LTRO office has primary responsibility to maintain the record of title
for Indian land under that LTRO office's assigned geographic area, and
that LTRO offices may assist other LTRO offices in maintaining the
record of title for Indian land not under that office's assigned
geographic area as needed. A homeownership organization stated its
support for a fully accessible electronic system across all LTRO
offices to allow workloads to be shifted and prevent backlogs. Two
title insurance company commenters asked what the process is for
ensuring documents are timely and correctly transmitted among LTRO
offices, how sharing workloads would impact recordation times, and
whether there is a tracking option to determine where submitted
documents are.
Response: All title documents are digitized (scanned into
electronic versions) and uploaded to a database that is accessible to
all LTRO offices, regardless of geographic area. Having one LTRO office
assist another in performing functions would have no impact on
recording timeframes, as all LTRO offices are subject to the same
standards. LTRO uses a system for tracking workloads to determine where
submitted documents are pending at any given point.
A Tribe expressed concern that LTRO offices outside the Tribe's
assigned geographic area may lack the knowledge and expertise to
process title documents unique to the geographic region. This Tribe
requested granting Tribes the option to have their title document
requests completed by their local LTRO or tasking local LTROs with
reviewing any reports produced by a secondary LTRO or outside BIA
office. Another Tribe requested clarity on what it means for a non-
assigned LTRO office to assist others, the process by which they would
provide assistance, and the types of functions or services that the
assistance would include. This Tribe suggested establishing a
standardized process for providing as-needed assistance and clarifying
whether a Tribe that has contracted or compacted to perform LTRO
functions on its reservation may also carry out the function for lands
located in other geographic areas.
Response: While there may be variations in types of title documents
among regions, title documents are encoded by the knowledgeable BIA
realty staff familiar with potential unique variations. The LTRO
functions do not vary across geographic areas. LTRO has determined that
it is more appropriate to set out in policy the details of the process
by which LTRO offices would provide assistance and types of functions
or services the assistance would include, as a matter of internal
management that does not have any effect on landowners or others,
except as a method of ensuring that LTRO continues to perform its
functions expeditiously. The final rule also clarifies that this
provision does not apply to Tribes that are contracting or compacting
the LTRO function, because under the Indian Self-Determination and
Education Assistance Act, those contacting or compacting Tribes would
first need to obtain authorization from each Tribe to be benefitted by
the proposed contract or compact before assuming operation of any
program, function, service, or activity (PFSA). 25 CFR 900.8(d)(1).
C. Comments on Subpart C--Recording Documents
1. Documents LTRO Records (Sec. 150.201)
An individual commenter suggested adding a provision to require
LTRO to record when title changes from trust to fee and title
recordation responsibilities are transferred to State or local
jurisdictions.
Response: When a tract is transferred to fee status, it is no
longer ``Indian land'' and is inactivated in the record of title.
A Tribe stated that the requirement to record subleasehold
mortgages under 25 CFR 150.201(a) ensures the record of title is
accurate, complete, and up to date, but could constrain current
staffing and resources for LTRO offices that handle a significant
number of leases, noting that this requirement triples the number of
instruments the LTRO records and maintains for its reservation.
Response: Including subleasehold mortgages as recordable documents
reflects a regulatory requirement that already exists in 25 CFR part
169.
Another Tribe noted that the list in Sec. 150.201 of documents for
which Secretarial approval is not required, but must be recorded, does
not include Tribal utility lines crossing Tribal lands.
Response: The list included in Sec. 150.201 is not exhaustive;
however, the final rule adds this item to the list for clarity.
A title insurance company commenter asked what the phrase ``certain
Tribes'' is referencing in Sec. 150.201(c)(1).
Response: The final rule replaces the phrase ``certain Tribes''
with ``a Tribe.''
This same title insurance company commenter requested a global
statement be added to the regulations confirming that nothing prohibits
recording title in county records with the consent of the landowner.
Response: While it is true that nothing prohibits recording title
to Indian land in county records with the consent of the landowner, the
final rule does not include this statement because that statement could
cause confusion regarding the official record of title for Indian land.
2. Checking With Other Governmental Land Records (Sec. 150.202)
A Tribe expressed concern that the regulatory provision saying that
due diligence may require examination of other Federal, State, and
local records is unclear and distorts the role LTRO offices play in
maintaining the official record of title for Indian land. The Tribe
asserts that the regulation should be clear on this point, to eliminate
any
[[Page 45636]]
misconception that the record of title for all lands, including Indian
lands, is maintained at the State or local level.
Response: The final rule clarifies in Sec. 150.202 that LTRO
maintains current and historical title documents to Indian land in the
system of record.
A homeownership organization suggested that Sec. 150.202 should
give examples of circumstances in which due diligence may require
examination in other records of title.
Response: Examples of circumstances in which due diligence may
require examination in other records of title include: Archives for
original land patents may require examination in other Federal records
of titles; and fee-to-trust transactions for undivided fee interests in
a tract in which other undivided interests are owned in trust or
restricted status may require examination in State and local records of
title. The final rule does not include these examples in the regulatory
text because doing so may give the impression that these examples
constitute the entire universe of documents for which due diligence may
require examination in other records of title.
3. Who May Submit for Recording (Sec. 150.203)
Two title insurance company commenters requested the regulations
include a timeframe for recording upon submission.
Response: As mentioned above, the LTRO does abide by internal
timeframes. LTRO has an internal timeframe of two business days for
recording any document upon receipt from the Agency, Region, or OHA.
The timeframe for the Agency, Region, or OHA to prepare and transmit a
document to LTRO is outside the scope of this rule.
4. Delegation of the Recording Function (Sec. 150.204)
One Tribe commented on Sec. 150.204, which states that the BIA
Director may delegate authority to record title documents to another
BIA office by documenting the delegation and types of transactions to
which it applies in the Indian Affairs Manual. The Tribe stated their
support for the flexibility to allow workload sharing across LTRO
offices, so long as the primary LTRO primarily maintains the record of
title. The Tribe also requested that Tribes be given notice of any
long-term delegations so the Tribe may discuss the delegation with the
Regional Director. An individual commenter expressed concern with
allowing BIA to delegate authority to another office.
Response: The final rule retains this provision to provide
flexibility for workload sharing. Any long-term delegation that has
potential Tribal implications would be subject to Executive Order 13175
requirements for Tribal consultation.
A Tribe asked that privacy concerns be addressed through best
practices to ensure that documents are only accessed by designated and
authorized personnel for BIA purposes.
Response: The Privacy Act applies to records within the record of
title and, under its system of record, access to the record of title is
limited to designated and authorized personnel for official purposes.
5. Minimum Requirements for Recording (Sec. 150.205)
An individual commenter described past sales that reserved part of
the interests (such as the mineral rights) for transfer at a later
date, and stated they require affirmative title actions.
Response: This section, Sec. 150.205(b), sets out the minimum
requirements for recording documents. Actions required to obtain BIA
approval of a transfer are addressed in separate regulations.
A title insurance company commenter requested clarification as to
whether the ``proper notarization or other acknowledgment of the
signatures of the parties'' must be pursuant to State law.
Response: The applicable law depends upon the document, and where
it was signed. Notaries are commissioned under State law. Other
acknowledgments may include those authorized for military members to
acknowledge other military members' signatures, social workers or
wardens to acknowledge the signatures of incarcerated individuals, and
foreign country notary equivalents. The LTRO does not scrutinize the
notary commission authority, beyond checking to ensure notary's name
appears on the stamp and the commission has not expired.
Another commenter asked whether notarization pursuant to remote
online notarization laws is considered ``proper notarization or other
acknowledgment of the signatures of the parties.''
Response: Notarial acts follow State laws where the notary is
physically located. While the Department of the Interior continues to
monitor remote online notarization capabilities, the Department does
not currently recognize remote online notarization for Federal
purposes, even when permitted under State notarial laws. Some State
laws have included language that simultaneous live audio/video would
constitute ``in-person'' acknowledgment. For these reasons, the final
rule specifies in Sec. 150.205(a)(3) that ``traditional in-person''
notarization or other ``in-person'' acknowledgment of the parties'
signatures, if appropriate, is a minimum requirement for recording.
Two title insurance company commenters requested more specificity
about when a tract number is required in addition to the legal
description to record a document.
Response: The final rule revises the proposed rule by stating that
the tract number should be included ``if available,'' rather than ``if
required.'' See Sec. 150.205(a)(1).
A Tribe pointed out that the current Part 150 states that title
documents must be submitted to the appropriate LTRO for recording
immediately after final approval, issuance, or acceptance, but the new
proposed rule at Sec. 150.205 deletes any reference to a timeframe.
This Tribe also asked whether the requirement to record documents that
may not have been recorded in the past is retroactive.
Response: Any applicable timeframes for agencies to submit
documents for recording are found in the regulations governing the
underlying realty transactions. For example, regulations governing
leasing provide that BIA will record the lease documents immediately
upon approval of the transaction. See, e.g., 25 CFR 162.217, 162.246,
162.343, 162.443, 162.533, 162.568.
6. Title Defects (Sec. 150.206)
An individual commenter requested that a statement be added to
Sec. 150.206 to clarify that corrections to title documents are made
after the BIA adjudicates the defect under appropriate regulations,
including notice to potential owners/heirs or impacted lenders
regarding the corrections that are being requested or proposed. Several
title insurance company commenters had similar comments, stating that
there is no process to notify the parties of a need for correction and
asked how they would know that a document is being corrected.
Response: This regulation focuses on LTRO's role, which is to
record title documents. The BIA Region or Agency is the liaison to the
parties to the transaction and is responsible for notifying them. The
responsibility to notify potential owners/heirs of corrections is
outside the scope of this regulation.
Title insurance company commenters asked whether a document will be
disclosed on a TSR if LTRO has discovered a title defect during a title
examination, requested the originating
[[Page 45637]]
office correct the defect, and added a notation in the record of title.
Response: If a document meets the minimum requirements for
recording, LTRO records the document and puts a notation on title, in
which case the title document will appear on the TSR. If the document
does not meet the minimum requirements for recording, such as when
there is a fatal defect or required information is omitted, then LTRO
sends the document back to the original office for a correction, in
which case the title document generally would not appear on the TSR.
A few commenters suggested adding timelines for curing defects or
omissions in title documents.
Response: The agency who is the originating office is responsible
for curing any omission or error. When LTRO discovers a defect, LTRO
sends the documents electronically in real time to the LTRO for
correction. Once LTRO receives the corrected document, the timeframes
applicable to recording of any document applies.
D. Comments on Subpart D
1. Certifying Copies (Sec. 150.301)
A Tribe questioned whether there is, in fact, an ``official seal''
and stated that they have not yet received one even though they have
compacted LTRO functions.
Response: BIA will follow up with the Tribe to provide a stamp that
serves as the official seal.
2. LTRO Reports (Sec. 150.302)
An individual commenter requested clarification on who and to whom
``uncertified reports'' may be made.
Response: LTRO provides uncertified reports for the agency to
provide to those authorized to receive the documents (for example,
Tribal and individual Indian landowners). Uncertified reports are often
provided to assist lenders in preparing mortgage documents, and then
when LTRO records the finalized mortgage, LTRO provides a certified
TSR.
3. Who May Obtain Title Documents Without FOIA (Sec. 150.303)
An individual commenter requested that this section specify that
owners whose ownership interests have been removed by the BIA and are
appealing that removal may obtain copies of title documents without
filing a Freedom of Information Act (FOIA) request.
Response: The Indian Land Consolidation Act, as amended by the
American Indian Probate Reform Act of 2004 (AIPRA) explicitly states
who may have access to title documents. AIPRA's list of those who may
have access does not include individuals who no longer qualify as
owners. If the individual is appealing, as the commenter states, then
the provisions of 25 CFR part 2 and 43 CFR part 4 may apply.
Multiple commenters requested that title insurance companies,
lenders, and government agencies have access to title documents to
support Tribal development and housing through their insurance products
and support mortgage processes in Indian Country. Two title insurance
company commenters asked whether a ``legally authorized
representative'' would include a title company.
Response: ``Legally authorized representatives'' refer to those
holding powers of attorney or serving as guardians for the Indian land
owners. Title companies, lenders, and government agencies involved in
the mortgage process are entitled to access to the appropriate title
documents and reports under Sec. 150.303(c), because they are
effectively applying to lease, use, or consolidate Indian land; the BIA
agency would verify that they are entitled to access and serve as the
liaison to LTRO. The usual path for title companies to access records
is through the BIA agency realty staff that are handling the underlying
realty transaction. The agency realty staff have access to the record
of title and provide the title company with appropriate records, and
then request any certified copies from LTRO. Likewise, lenders and
others work through the BIA agency, who would access the record of
title and obtain the appropriate documents and reports from LTRO. In
accordance with a recommendation from the Housing and Urban Development
(HUD), the final rule also adds clarifying language to Sec. 150.303 to
specify that Federal agencies administering Native American
homeownership programs, and lenders participating in these programs,
are able to request and receive copies of title documents for Indian
land without additional justification regarding leasing, using, or
consolidating land.
A title insurance company commenter requested that the regulations
precisely address any forms needed to authorize access to title
documents.
Response: LTRO does not have any forms for accessing title
documents; instead, BIA agency realty staff will contact LTRO by email
to obtain the appropriate title documents and reports, and work with
the requestor and LTRO.
A Tribe stated that the regulations should specify that any person
or entity seeking records based on applying to lease, use, or
consolidate Indian land must also be required to submit written proof
of consent for the disclosure by the owners of the Indian land or Tribe
with jurisdiction.
Response: In practice, the BIA agency realty staff serves as the
gatekeeper and works with anyone seeking to lease, use, or consolidate
Indian land to obtain the necessary title documents or reports from
LTRO for the transaction. The final rule adds language to clarify that
the BIA realty staff are the primary points of contact for anyone
requesting information from the LTRO.
A Tribe commented on its need to have timely and unencumbered
access to oil and gas records.
Response: This comment is beyond the scope of the regulations. The
Federal records the Osage Mineral Council references in its comments
are maintained by the BIA Osage Agency in relation to leasing of the
Osage Mineral Estate for oil and gas mining and are not title records.
Accordingly, the records are not governed by the LTRO regulations at
issue.
4. How To Request Copies (Sec. 150.304)
An individual commenter requested adding a provision to allow
individuals to request records directly from the LTRO when requesting
them through their local agency would be sensitive (e.g., because they
are evaluating their legal options).
Response: A direct request to LTRO would need to provide
justification for not going through the BIA Agency or Region, including
a case number if there is a challenge in progress. The final rule does
not provide directions for requesting information directly from the
LTRO because, in nearly all cases, requests should be made through the
BIA Agency or Region.
A Tribe requested ``title documents'' be deleted so that only the
LTRO with jurisdiction over the specified lands can provide copies. The
Tribe pointed to a situation where an LTRO may know that there are
probates pending on a certain parcel of land and check the status of
the probate to see it has been adjudicated and an update to the records
is necessary.
Response: Title documents do not reflect pending transactions, only
those that are approved. Regardless of whether the LTRO is aware of a
pending probate or other transaction, the pending probate or other
transaction does not affect the title until approved. The LTRO updates
title as soon as a transaction is approved, and each LTRO office has
the same access to that record of title, so there is no benefit to
limiting the ability to provide copies to only the LTRO with
jurisdiction over the specified land.
[[Page 45638]]
5. Fees (Sec. 150.306)
A Tribe commented that if they were to charge fees in carrying out
LTRO functions under its self-governance compact, that they should not
be bound by Federal standards because those standards are out of touch
with ``rush'' orders and other demands.
Response: In fulfilling Federal functions as an LTRO, Tribes are
bound by Federal regulations and statutes.
Another Tribe commented that the fee schedule is outdated and not
representative of geographical differences and recommended that BIA
authorize LTRO offices to develop their own fee schedules that are
indexed to CPI and account for geographical differences.
Response: The final rule continues to use the fee schedule
established at 43 CFR part 2, Appendix A, for consistency across the
Department, to avoid ``forum shopping'' for the lowest fees and for
administrative efficiency to prevent each of the 12 LTRO offices from
having to individually publish and update their fees.
A Tribe opposed charging a fee to a Tribe with jurisdiction to
obtain copies of records concerning land under its jurisdiction.
Response: The final rule deletes the provision allowing for Tribes
with jurisdiction to be charged a fee for copies of documents related
to land under their jurisdiction.
A title insurance company commented that paying for documents adds
another hurdle for development by increasing the expense of doing
business in Indian County.
Response: The fees required under this rule are nominal and are an
expected cost of doing business, given that companies charge for title
searches and counties and localities often charge fees, as well.
HUD recommended adding an exception from paying fees for Federal
agencies administering Native American homeownership programs and
lenders participating in the programs.
Response: The final rule does not require LTRO to charge fees and
provides that LTRO may waive the fees. LTRO generally will not charge
fees to Federal agencies administering Native American homeownership
programs and lenders participating in these programs for specific
transactions.
E. Comments on Subpart E
A Tribe disagreed with the proposed rule's provision for
determining whether a record is the property of the United States,
stating that ownership should depend on an analysis of the BIA's
ability to fulfill trust obligations if documents are ``owned'' by the
United States, statutes, case law, and how agencies have treated
similar documents in the past.
Response: The rule restates existing statutory law regarding the
ownership of Federal records. See Federal Records Act, 44 U.S.C.
chapters 29, 31, 33.
Another comment was that it is not realistic for a party who
``makes or receives records'' to preserve them in accordance with
Departmental records retention procedures.
Response: The rule restates existing law regarding contractors'
obligation to preserve records under the Federal Records Act. See 36
CFR 1222.32.
Title insurance company commenters stated that the rule should
address what happens to title documents when property is transferred
out of trust or restricted status.
Response: The rule does not address what happens to title documents
when property is transferred out of trust or restricted status, because
at that point, it is no longer LTRO's responsibility to maintain title
to the property. Once property is transferred out of trust or
restricted status, responsibility for maintenance of title to that
property shifts to the county or locality.
F. Miscellaneous
Several comments addressed Realty functions, rather than LTRO
functions, including expressing concerns with mortgages and other
transaction timelines, and requesting a more transparent process on
land transactions. One commenter requested published listings and
organization charts for identifying the correct person to contact. A
commenter also requested the addition of a BIA Realty ombudsman to
assist Tribes in prioritizing residential mortgage approval packages
and certified TSRs.
Response: These comments are not directly related to the current
rulemaking, but the Department will work with BIA Realty staff to
address these comments, as appropriate.
One Tribe stated that the rule should address records or
encumbrances that are missing from TAAMS and detail a process for
Tribes to report, and the Department to resolve, data gaps in TAAMS,
and establish deadlines for the Department to resolve missing records.
Response: LTRO will work with BIA to identify whether there are any
data gaps in TAAMS.
At least one commenter stated that the LTRO needs additional staff
and resources to perform their duties.
Response: The Department is working with the appropriate Federal
agencies to increase staff.
One Tribe requested the Department revise and reissue a more
expansive proposed rule. Another commenter also requested reopening the
comment period because the public comment period occurred over the
holidays and through a change in Administration.
Response: The Department has considered this request and determined
that the issues addressed by the Tribe could not be remedied by changes
to this regulation because the issues relate to BIA realty functions,
rather than LTRO functions. The Department has determined that
finalization of these regulations at this time is important to replace
the outdated regulations.
One Tribe commented that Tribes should have open access to TAAMS to
conduct their own uncertified TSRs and accessing other trust records,
which would increase transparency and improve processing time for
LTROs.
Response: Title documents to Indian land are Federal and trust
records, so access is subject to Privacy Act and other restrictions.
For Tribes that are carrying out the Federal functions of the LTRO,
Tribal staff must obtain the appropriate access credentials and Federal
equipment.
On Tribe stated that LTRO should manage title to water, as well as
land, and suggested further consultation on the lack of a comprehensive
water management system by BIA.
Response: LTRO is not currently equipped to track water rights;
however, the suggestion that a comprehensive water management system to
track water user rights may be appropriate for future discussion and
consultation.
One commenter urged that any changes in this rule be coordinated
with those eventually adopted under the probate regulations.
Response: The Department is coordinating updates to both these
regulations to ensure they are substantively consistent.
A title insurance commenter requested an explanation of BIA
oversight and standards for Tribal LTROs.
Response: Tribes compacting or contracting the LTRO functions are
subject to the same standards as Federal LTROs in that they must follow
the same statutes and regulations.
A commenter stated that any regulatory updates should include a
training effort to inform agency and LTRO staff.
Response: BIA will conduct training regarding following
finalization.
[[Page 45639]]
IV. Changes From Proposed Rule to Final Rule
The final rule includes several changes from the proposed rule to
address comments received on the proposed rule and for clarity. The
following table lists each of the changes made from proposed to final:
------------------------------------------------------------------------
Description of changes final rule
25 CFR Sec. makes to proposed rule
------------------------------------------------------------------------
150.1 What is the purpose of this No changes to proposed rule.
part?.
150.2 What terms do I need to Adds definitions for ``inherently
know?. Federal function'' and ``land.''
150.3 May Tribes administer this No changes to proposed rule.
part on LTRO's behalf?.
150.101 What is the purpose of the Deletes reference to the public
record of title?. being provided with constructive
notice, because only certain
individuals/entities have access to
information in the record of title.
150.102 Who maintains the record No changes to proposed rule.
of title?.
150.103 What services does the Adds to paragraph (b) ``in
LTRO perform to maintain the accordance with applicable law'' to
record of title?. clarify that only certain
individuals/entities may obtain
certified copies of title documents
in the record of title.
Clarifies that LTRO may provide
uncertified Title Status Reports,
in addition to certified Title
Status Reports.
150.104 How does the LTRO maintain Deletes ``system of record'' as an
the record of title?. unnecessary phrase that could be
confused with ``record of title.''
150.105 Are certain LTRO offices Clarifies that only LTRO offices
responsible for certain that are operated by BIA may assist
geographic areas?. in maintaining the record of title
for Indian land not under their
assigned geographic area. Tribes
compacting or contracting LTRO
functions would be subject to the
Indian Self-Determination and
Education Assistance Act
requirements to obtain authorizing
resolutions from each Tribe to be
benefitted by the contract or
contract. See 25 CFR 900.8(d)(1).
150.201 What is recorded in the Deletes phrase ``approved by the
record of title?. Secretary'' when referring to
Tribal Energy Resource Agreements
(TERAs) under 25 CFR 224 as
superfluous because TERAs must by
definition be Secretarially
approved under 25 CFR 224.
Adds Tribal authorizations for
Tribal utility lines crossing
Tribal lands as an example of title
documents that do not require
Secretarial approval but must be
recorded.
No changes are made to paragraph
(c), but please note that examples
of documents that are not title
documents that LTRO may record are
documents related to: off-
reservation BIE schools, Indian
irrigation projects, off-
reservation treaty fishing access
sites, Federal public works placed
on Indian land, and Tribal land
assignments.
150.202 Must I check with any Adds that LTRO maintains current and
other governmental office to find historical title documents for
title documents for Indian land?. clarification.
150.203 Who may submit a title No changes to proposed rule.
document for recording?.
150.204 Who records title No changes to proposed rule.
documents?.
150.205 What are the minimum Clarifies that a legal description
requirements for recording a of the Indian land that is
title document?. encumbered by the title document
must be included for the title
document to be recorded.
Revises to provide that the tract
number must be included only if
available.
Adds that notarization or
acknowledgment of the signatures of
the parties must be in person,
because the Department does not at
this time accept remote
notarization for Federal purposes.
150.206 What actions will LTRO Clarifies that LTRO will take the
take if it discovers a title actions in paragraphs (a) and (b)
defect?. if it discovers an omission or
error, respectively, prior to
recording a title document.
Clarifies that LTRO does not record
the title document if the defect is
fatal.
150.301 How does LTRO certify No changes to proposed rule.
copies of title documents?.
150.302 What reports does the LTRO No changes to proposed rule.
provide?.
150.303 Who may request and Clarifies that individuals and
receive copies of title documents entities request copies of title
in the record of title or reports documents and reports through their
from LTRO without filing a Region or Agency office, rather
Freedom of Information Act than from the LTRO directly.
request?. Adds that Federal agencies
administering Native American
homeownership programs and Federal
lenders participating in the
programs have access to title
documents and reports without
filing a Freedom of Information Act
(FOIA) request.
150.304 Where do I request copies No changes to proposed rule.
of title documents or reports
from LTRO?.
150.305 What information must I No changes to proposed rule.
provide when requesting copies of
title documents and reports?.
150.306 Will I be charged a fee Deletes Tribes from list of parties
for obtaining copies of records?. that may be charged a fee for
copies of records for Indian land
subject to the Tribe's
jurisdiction.
150.401 Who owns the records No changes to proposed rule.
associated with this part?.
150.402 How must records No changes to proposed rule.
associated with this part be
preserved?.
150.403 How does the Paperwork No changes to proposed rule.
Reduction Act affect this part?.
------------------------------------------------------------------------
[[Page 45640]]
V. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866)
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) at the Office of Management
and Budget (OMB) will review all significant rules. OIRA has determined
that this rule is not significant.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the Nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The E.O. directs agencies to consider regulatory approaches that reduce
burdens and maintain flexibility and freedom of choice for the public
where these approaches are relevant, feasible, and consistent with
regulatory objectives. E.O. 13563 emphasizes further that regulations
must be based on the best available science and that the rulemaking
process must allow for public participation and an open exchange of
ideas. We have developed this rule in a manner consistent with these
requirements.
B. Regulatory Flexibility Act
The Department of the Interior certifies that this document will
not have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The rule addresses how Indian land title and records are maintained.
C. Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
(a) Will not have an annual effect on the economy of $100 million
or more.
(b) Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
(c) Will not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of the
U.S.-based enterprises to compete with foreign-based enterprises.
D. Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
Tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local, or Tribal governments or the private sector. A statement
containing the information required by the Unfunded Mandates Reform Act
(2 U.S.C. 1531 et seq.) is not required.
E. Takings (E.O. 12630)
This rule does not affect a taking of private property or otherwise
have taking implications under Executive Order 12630. A takings
implication assessment is not required.
F. Federalism (E.O. 13132)
Under the criteria in section 1 of Executive Order 13132, this rule
does not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement. A federalism
summary impact statement is not required.
G. Civil Justice Reform (E.O. 12988)
This rule complies with the requirements of Executive Order 12988.
Specifically, this rule:
(a) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
H. Consultation With Indian Tribes (E.O. 13175)
The Department of the Interior strives to strengthen its
government-to-government relationship with Indian Tribes through a
commitment to consultation with Indian Tribes and recognition of their
right to self-governance and Tribal sovereignty. We have evaluated this
rule under the Department's consultation policy and under the criteria
in Executive Order 13175 and have determined that Tribal consultation
is appropriate because the rule addresses maintenance of land held in
trust or restricted status for Tribes. The Department hosted
consultation sessions on January 12 and 14, 2021 by telephone, and
provided access on its website to a Powerpoint presentation setting out
the proposed rule's provisions. Twelve Tribes submitted written
comments during the consultation period. Summaries of those comments
and responses to the comments are provided in Section III, above.
I. Paperwork Reduction Act
This rule contains new information collections. All information
collections require approval under the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.). We may not conduct or sponsor and you are not
required to respond to a collection of information unless it displays a
currently valid Office of Management and Budget (OMB) control number.
The Department is seeking approval of a new information collection, as
follows.
Brief Description of Collection: The Bureau of Indian Affairs (BIA)
Land Title and Records Office (LTRO) maintains title documents for land
that the United States holds in trust or restricted status for
individual Indians or Tribes (Indian land), much like counties and
other localities maintain title documents for fee land within their
jurisdictions. Individuals or entities that are requesting information
regarding title documents--either for property they own or for property
they seek to lease or encumber--must provide certain information to the
LTRO in order for LTRO to accurately identify the property for which
they are seeking information. LTRO uses the information provided by
individuals or entities in order to identify the property so that they
can retrieve the appropriate title documents and produce reports for
that property. The collection of information is found in Sec. 150.305,
which provides that anyone requesting title documents or reports must
provide certain information, such as the name of the reservation where
the land is located and the tract number or legal description.
Title: Requests for Indian Land Title and Records Information.
OMB Control Number: 1076-0196.
Form Number: None.
Type of Review: Existing collection in use without an OMB Control
Number.
Respondents/Affected Public: Individuals, Private Sector,
Government.
Total Estimated Number of Annual Respondents: 36.
Total Estimated Number of Annual Responses: 36.
Estimated Completion Time per Response: 0.5 hours.
Total Estimated Number of Annual Burden Hours: 19 hours (consisting
of 10 hours for private sector respondents, 3 hours for individual
respondents--rounded up from 2.5 hours, and 6 hours for government
respondents--rounded up from 5.5 hours).
Respondents' Obligation: Required to obtain a benefit.
Frequency of Response: Occasionally.
Total Estimated Annual Non-Hour Burden Cost: $500.
As part of our continuing effort to reduce paperwork and respondent
burdens, we invite the public and other
[[Page 45641]]
Federal agencies to comment on any aspect of this information
collection, including:
(1) Whether or not the collection of information is necessary for
the proper performance of the functions of the agency, including
whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection
of information, including the validity of the methodology and
assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the
information to be collected; and
(4) Ways to minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of response.
Written comments and recommendations for the proposed information
collection should be sent within 30 days of publication of this notice
to <a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>. Find this particular information
collection by selecting ``Currently under 30-day Review--Open for
Public Comments'' or by using the search function. Please provide a
copy of your comments to <a href="/cdn-cgi/l/email-protection#482b27263b3d243c293c212726082a2129662f273e"><span class="__cf_email__" data-cfemail="63000c0d10160f1702170a0c0d23010a024d040c15">[email protected]</span></a>. Please reference OMB
Control Number 1076-0196 in the subject line of your comments.
J. National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. A detailed statement
under the National Environmental Policy Act of 1969 (NEPA) is not
required because the environmental effects of this proposed rule are
too speculative to lend themselves to meaningful analysis and will
later be subject to the NEPA process, unless covered by a categorical
exclusion. (For further information see 43 CFR 46.210(i)). We have also
determined that the rule does not involve any of the extraordinary
circumstances listed in 43 CFR 46.215 that would require further
analysis under NEPA.
K. Effects on the Energy Supply (E.O. 13211)
This rule is not a significant energy action under the definition
in Executive Order 13211. A Statement of Energy Effects is not
required.
List of Subjects in 25 CFR Part 150
Indians--lands.
For the reasons given in the preamble, the Department of the
Interior amends 25 CFR chapter I, subchapter H, by revising part 150 to
read as follows:
PART 150--RECORD OF TITLE TO INDIAN LAND
Subpart A--Purpose and Definitions
Sec.
150.1 What is the purpose of this part?
150.2 What terms do I need to know?
150.3 May Tribes administer this part on LTRO's behalf?
Subpart B--Record of Title to Indian Land
150.101 What is the purpose of the record of title?
150.102 Who maintains the record of title?
150.103 What services does the LTRO perform to maintain the record
of title?
150.104 How does the LTRO maintain the record of title?
150.105 Are certain LTRO offices responsible for certain geographic
areas?
Subpart C--Procedures and Requirements to Record Documents
150.201 What is recorded in the record of title?
150.202 Must I check with any other governmental office to find
title documents for Indian land?
150.203 Who may submit a title document for recording?
150.204 Who records title documents?
150.205 What are the minimum requirements for recording a title
document?
150.206 What actions will the LTRO take if it discovers a title
defect?
Subpart D--Disclosure of Title Documents and Reports
150.301 How does LTRO certify copies of title documents?
150.302 What reports does LTRO provide?
150.303 Who may request and receive copies of title documents in the
record of title or reports from LTRO without filing a Freedom of
Information Act request?
150.304 Where do I request copies of title documents and reports
from LTRO?
150.305 What information must I provide when requesting title
documents or reports?
150.306 Will I be charged a fee for obtaining copies of records?
Subpart E--Records
150.401 Who owns the records associated with this part?
150.402 How must records associated with this part be preserved?
150.403 How does the Paperwork Reduction Act affect this part?
Authority: 5 U.S.C. 301; 5 U.S.C. 552a; 25 U.S.C. 2; 25 U.S.C.
5; 25 U.S.C. 7; 25 U.S.C. 9; 25 U.S.C. 14b; 25 U.S.C. 25; 25 U.S.C.
199; 25 U.S.C. 343; 25 U.S.C. 355; 25 U.S.C. 413; 25 U.S.C. 2201 et.
seq.; 44 U.S.C. 2901 et. seq.; 44 U.S.C. 3101 et. seq.; and 44
U.S.C. 3301 et. seq.
Subpart A--Purpose and Definitions
Sec. 150.1 What is the purpose of this part?
This part describes the BIA repository of title documents for
Indian land and responsibilities for recording title documents,
maintaining the repository, and providing reports on title to Indian
land.
Sec. 150.2 What terms do I need to know?
Agency means the BIA agency or field office with jurisdiction over
a particular tract of Indian land or another BIA office through
delegation and documentation of responsibilities in the Indian Affairs
Manual. This term also means any Tribe acting on behalf of the
Secretary or BIA under a contract or compact under the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 5301 et seq.).
BIA means the Bureau of Indian Affairs within the Department of the
Interior.
Certified copy means a copy of a title document that is a true and
correct copy of the title document as recorded in the record of title
and evidenced by an official seal.
Certify for the purposes of certifying Title Status Reports,
probate inventory reports, title status maps, and findings of title
examinations means that an LTRO Certifying Officer has determined that
the report, map, or examination of land title status is complete,
correct, and current, based on the record of title.
Certifying Officer means the LTRO Manager or another properly
authorized or delegated Federal official who certifies the status of
title to Indian lands or copies of title documents.
Defect or title defect means an error contained within, or created
by, a title document that makes the title to Indian land uncertain.
I or you means the person to whom these regulations directly apply.
Indian land means land, or an interest therein, that is:
(1) Held in trust by the United States for one or more individual
Indians or Tribes; or
(2) Owned by one or more individual Indians or Tribes and can only
be alienated or encumbered by the owner with the approval of the
Secretary because of restrictions or limitations in the conveyance
instrument or in Federal law.
Inherently Federal function means Federal function that may not
legally be delegated to an Indian Tribe.
Land is real property, including any interests, benefits, and
rights inherent in the ownership of the real property. Land may include
surface and/or subsurface interests.
[[Page 45642]]
LTRO means the Land Title and Records Office within the BIA, which
is responsible for recording title documents, maintaining the record of
title, and providing certified copies of title documents and reports.
The term LTRO, as used herein, includes any Tribe acting on behalf of
the Secretary or BIA under Sec. 150.3.
Manager is the designated officer in charge of a LTRO office or his
or her designated representative.
OHA means the Office of Hearings and Appeals within the Department
of the Interior.
Probate Inventory Report means a report of Indian land owned by an
individual Indian at the time of his or her death.
Record of title means the BIA's repository of title documents for
Indian land.
Recording is the acceptance of a title document and entry into the
record of title of a title document by LTRO. An official LTRO stamp
affixed to the title document provides evidence that the title document
has been recorded.
Region means a BIA regional office.
Secretary means the Secretary of the Interior or his or her
authorized representative.
Title means ownership of Indian land.
Title document means any document that affects the title to or
encumbers Indian land, including but not limited to conveyances,
probate orders, encumbrances (such as mortgages, liens, permits,
covenants, leases, easements, rights-of-way), plats, cadastral surveys,
and other surveys.
Title examination means a review and evaluation by the LTRO of: (1)
title documents submitted to it for recording, and (2) the status of
title for a particular tract of Indian land based on the record of
title, and a finding, certified by the LTRO Manager, that title is
complete, correct, current, and without defect, or identifies defects
that must be corrected.
Title Status Report means a report issued after a title examination
that shows the proper legal description of a tract of Indian land;
current ownership, including any applicable conditions, exceptions,
restrictions or encumbrances of record; and whether interests in the
land are in unrestricted, restricted, trust, and/or other status as
indicated by the record of title in the LTRO.
Tribe means an Indian Tribe under section 102 of the Federally
Recognized Indian Tribe List Act of 1994, 25 U.S.C. 5129(a).
Sec. 150.3 May Tribes administer this part on LTRO's behalf?
A Tribe may contract or compact under the Indian Self-Determination
and Education Assistance Act (25 U.S.C. 5301 et seq.) to administer on
LTRO's behalf any portion of this part that is not an inherently
Federal function.
Subpart B--Record of Title to Indian Land
Sec. 150.101 What is the purpose of the record of title?
The record of title provides the BIA with a record of title
documents to Indian land and provides constructive notice that the
title documents exist.
Sec. 150.102 Who maintains the record of title?
The LTRO is designated as the office responsible for maintaining
the record of title.
Sec. 150.103 What services does the LTRO perform to maintain the
record of title?
The LTRO is responsible for performing the following services to
maintain the record of title:
(a) Recording title documents submitted by an Agency, Region, or
OHA;
(b) Providing certified copies of the title documents in the record
of title in accordance with applicable law;
(c) Examining the record of title and certifying the findings of
title examinations;
(d) Providing certified and uncertified Title Status Reports;
(e) Preparing, maintaining, and providing land status maps;
(f) Providing and certifying probate inventory reports; and
(g) Providing other services and reports based upon the information
in the record of title.
Sec. 150.104 How does the LTRO maintain the record of title?
The LTRO maintains the record of title electronically. However,
certain title documents may exist only as physical copies and not
electronically.
Sec. 150.105 Are certain LTRO offices responsible for certain
geographic areas?
Staff at each LTRO office will have primary responsibility to
maintain the record of title for Indian land under that LTRO office's
assigned geographic area, based on BIA Region, Tribal reservation, or
otherwise, as prescribed by BIA through internal procedures. BIA will
keep an updated list of each LTRO office's assigned geographic area of
responsibility on <a href="http://www.bia.gov/bia/ots/dltr">www.bia.gov/bia/ots/dltr</a>. LTRO offices operated by
BIA (as opposed to a Tribe acting on behalf of the Secretary) may
assist in maintaining the record of title for Indian land not under
their assigned geographic area as needed.
Subpart C--Procedures and Requirements To Record Documents
Sec. 150.201 What is recorded in the record of title?
(a) All title documents for Indian land must be recorded in the
record of title, regardless of whether the document reflects a
transaction that required Secretarial approval. For example, the
following do not require Secretarial approval, but are title documents
required to be recorded:
(1) Service line agreements must be recorded under 25 CFR 169.56;
(2) Individual leases under approved Helping Expedite and Advance
Responsible Tribal Homeownership (HEARTH) Tribal regulations must be
recorded under the Indian Affairs Manual (IAM) at 52 IAM 13;
(3) Individual leases, business agreements, and rights-of-way under
Tribal Energy Resource Agreements under 25 CFR 224 must be recorded;
(4) Leases between a Tribe and a Tribal energy development
organization under 25 CFR 224 must be recorded;
(5) Leases of Tribal land by a 25 U.S.C. 477 corporate entity under
its charter to a third party for a period not to exceed 25 years must
be recorded under 25 CFR 162.006(b)(3)(i);
(6) Tribal authorization for Tribal utility lines crossing Tribal
lands must be recorded under Sec. 169.4(b)(3)(iii); and
(7) Subleasehold mortgages under 25 CFR 162.009 must be recorded.
(b) The requirement in paragraph (a) of this section does not
eliminate or supersede any Federal statute or regulation requiring the
recording of title documents for Indian land in other records of title,
including title documents for Indian land within the jurisdiction of
the Five Civilized Tribes or the Osage Nation.
(c) LTRO may also record:
(1) Documents that demonstrate the rights of use, occupancy, and/or
benefit of a Tribe to U.S. Government land or other non-Indian lands;
and
(2) Certain documents regarding Indian lands that are not title
documents.
Sec. 150.202 Must I check with any other governmental office to find
title documents for Indian land?
LTRO maintains current and historical title documents to Indian
land but in certain circumstances, due diligence may require
examination of other Federal, State, and local records of title.
Sec. 150.203 Who may submit a title document for recording?
Only an Agency, Region, or OHA may submit title documents to the
LTRO for
[[Page 45643]]
recording. All other government offices and individuals must submit
title documents to the Agency, Region, or OHA, as appropriate, for that
Agency, Region, or OHA to submit to the LTRO.
Sec. 150.204 Who records title documents?
The LTRO is the designated office to record title documents. The
BIA Director may delegate the authority to record title documents to
another BIA office by documenting the delegation and the types of
transactions to which it applies in the Indian Affairs Manual.
Sec. 150.205 What are the minimum requirements for recording a title
document?
(a) A title document must include the following information to be
recorded in the record of title, except as provided in paragraph (b) of
this section:
(1) A legal description of the Indian land encumbered by the title
document and, if available, the tract number;
(2) The signatures of the parties to the document;
(3) Proper traditional in-person notarization or other in-person
acknowledgment of the signatures of the parties, if applicable;
(4) Signature and citation to the authority of the approving
official, if applicable; and
(5) Approval date.
(b) If the title document reflects a transaction that was deemed
approved under a statute or regulation providing that a transaction is
deemed approved after a certain period of time without Secretarial
action to approve or deny, then, at a minimum, the title document must
include the following items:
(1) A legal description of the Indian land encumbered by the title
document and, if required, the tract number;
(2) The signatures of the parties to the document;
(3) Proper acknowledgement or authentication of the signatures of
the parties, if applicable; and
(4) A citation to the statutory or regulatory authority for the
transaction to be deemed approved.
Sec. 150.206 What actions will the LTRO take if it discovers a title
defect?
(a) If prior to recording a title document, the LTRO discovers that
the title document omits one or more of the items required for
recording by Sec. 150.205(a) or (b), then the LTRO will notify the
originating office to request correction. Once the omission is
corrected, the LTRO will record the title document.
(b) If prior to recording a title document, the LTRO discovers
there is an error in one or more of the items required for recording by
Sec. 150.205(a) or (b), then the LTRO will record the title document,
unless the defect is fatal, with a notation on title and notify the
originating office to request correction. Once the error is corrected,
the LTRO will record the corrected title document and remove the
notation.
(c) If the LTRO discovers a title defect during a title
examination, the LTRO will notify the originating office of the defect,
request correction, and make a notation in the record of title. Once
the defect is corrected, the LTRO will record the corrected title
document or other legal instruments to correct the title document and
remove the notation.
(d) If the defect is contained in a probate record, the LTRO will
notify the Agency or Region to initiate corrective action with the OHA.
Subpart D--Disclosure of Title Documents and Reports
Sec. 150.301 How does the LTRO certify copies of title documents?
The Certifying Officer certifies copies of title documents in the
record of title by affixing an official seal to the copy of the title
document. The official seal attests that the certified copy is a true
and correct copy of the recorded title document.
Sec. 150.302 What reports does the LTRO provide?
The LTRO provides the following types of reports for Indian land to
those persons or entities authorized to receive such information:
(a) Certified reports, including a Title Status Report, Land Status
Map, and, as part of the probate record, the Probate Inventory Report;
and
(b) Uncertified reports or other reports based upon the information
in the record of title.
Sec. 150.303 Who may request and receive copies of title documents
in the record of title or reports from the LTRO without filing a
Freedom of Information Act request?
The following individuals and entities may request and receive,
through the Region or Agency office, copies of title documents in the
record of title or reports for Indian land from the LTRO without filing
a Freedom of Information Act request to the extent that disclosure
would not violate the Privacy Act or other law restricting access to
such records, for example, 25 U.S.C. 2216(e):
(a) Owners of an interest in Indian land (or their legally
authorized representative) may request copies of title documents in the
record of title or reports for the Indian land in which they own an
interest;
(b) The Tribe with jurisdiction over the Indian land may request
title documents or reports for Indian land subject to the Tribe's
jurisdiction;
(c) Any person (or their legally authorized representative) or
entity who is leasing, using, or consolidating Indian land or is
applying to lease, use, or consolidate Indian land may request title
documents or reports for such Indian land; and
(d) Federal agencies administering Native American homeownership
programs and Federal lenders participating in these programs who need
information on specific Indian land to provide funding.
Sec. 150.304 Where do I request copies of title documents or reports
from the LTRO?
You may request LTRO information, such as copies of title documents
or reports, at any Region or Agency office with access to the record of
title, regardless of geographic location. If the Region or Agency
office does not have access to the title documents or the ability to
generate the reports requested, it will refer the request to the office
with access to the title documents or ability to generate the reports
requested.
Sec. 150.305 What information must I provide when requesting copies
of title documents and reports?
(a) Except as provided in paragraph (b), to request title documents
or reports, you must provide only one of the following items of
information:
(1) If you are inquiring about your own interest in the tract, then
your name and date of birth, or identification number; or
(2) The name of the reservation where the land is located and
either the tract number or legal description; or
(3) The Agency name and either the tract number or legal
description; or
(4) A legal description of the tract; or
(5) A title document number pertaining to the tract; or
(6) The allotment number including the Tribe or land area code; or
(7) The name of the original allottee.
(b) Individuals and entities described in Sec. 150.303(c) must
also provide documents showing that they are entitled to the
information they are requesting from the LTRO because they are leasing,
using, or consolidating Indian land or the interests in Indian land, or
because they are applying to lease, use, or consolidate Indian land or
the interests in Indian land.
Sec. 150.306 Will I be charged a fee for obtaining copies of
records?
(a) The LTRO may charge a fee to any of the parties listed in Sec.
150.303 (c) for each copy of recorded title documents, Title Status
Reports, and land status
[[Page 45644]]
maps to cover the costs in reviewing, preparing, or processing the
documents.
(b) The fee will be at the rate established by 43 CFR 2, Appendix
A.
(c) The LTRO may waive all or part of these fees, at its
discretion.
(d) Paid fees are non-refundable.
Subpart E--Records
Sec. 150.401 Who owns the records associated with this part?
(a) The records associated with this part are the property of the
United States if they:
(1) Are made or received by the Secretary or a Tribe or Tribal
organization in the conduct of a Federal trust function under 25 U.S.C.
5301 et seq., including the operation of a trust program; and
(2) Evidence the organization, functions, policies, decisions,
procedures, operations, or other activities undertaken in the
performance of a Federal trust function under this part.
(b) Records not covered by paragraph (a) of this section that are
made or received by a Tribe or Tribal organization in the conduct of
business with the Department of the Interior under this part are the
property of the Tribe.
Sec. 150.402 How must records associated with this part be
preserved?
(a) Tribes, Tribal organizations, and any other organization that
make or receives records described in Sec. 150.401(a) must preserve
the records in accordance with approved Departmental records retention
procedures under the Federal Records Act, 44 U.S.C. chapters 29, 31 and
33. These records and related records management practices and
safeguards required under the Federal Records Act are subject to
inspection by the Secretary and the Archivist of the United States.
(b) A Tribe or Tribal organization should preserve the records
identified in Sec. 150.401(b) for the period of time authorized by the
Archivist of the United States for similar Department of the Interior
records in accordance with 44 U.S.C. chapter 33.
Sec. 150.403 How does the Paperwork Reduction Act affect this part?
The information collections contained in this part have been
approved by the Office of Management and Budget under 44 U.S.C 3301 et
seq. and assigned OMB Control Number 1076-0196. Response is required to
obtain a benefit. A Federal agency may not conduct or sponsor, and you
are not required to respond to, a collection of information unless the
form or regulation containing the collection of information has a
currently valid OMB Control Number.
Bryan Newland,
Assistant Secretary--Indian Affairs.
[FR Doc. 2021-17377 Filed 8-13-21; 8:45 am]
BILLING CODE 4337-15-P
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</html>Indexed from Federal Register on August 16, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.