this rule, parties are encouraged, to the extent possible consistent with adequate presentation of their factual and legal positions, to waive pleadings, discovery, and briefs.

(b) Written decisions by the Board in cases proceeding under this rule normally will be short and contain summary findings of fact and conclusions only. The Board will endeavor to render such decisions within 30 days after the appeal is ready for decision. Such decisions will be rendered for the Board by a single Board member with the concurrence of the Chairman; except that in cases involving $5,000 or less where there has been a hearing, the single Board member presiding at the hearing may, in his discretion, at the conclusion of the hearing and after entertaining such oral arguments as he deems appropriate, render on the record oral summary findings of fact, conclusions and decision of the appeal. In the latter instance, the Board will subsequently furnish the parties a typed copy of such oral decision for record and payment purposes and to establish the date from which the period for filing a motion for reconsideration under § 4.125 commences.

[40 FR 5528, Feb. 6, 1975]

§ 4.114

Settling of the record.

(a) A case submitted on the record pursuant to § 4.112 shall be ready for decision when the parties are so notified by the Board. A case which is heard shall be ready for decision upon receipt of transcript, or upon receipt of briefs when briefs are to be submitted. At any time prior to the date that a case is ready for decision, either party, upon notice to the other, may supplement the record with documents and exhibits deemed relevant and material by the Board. The Board upon its own initiative may call upon either party, with appropriate notice to the other, for evidence deemed by it to be relevant and material. The weight to be attached to any evidence of record I will rest within the sound discretion of the Board. Either party may at any stage of the proceeding, on notice to the other party, raise objection to material in the record or offered into the record, on the grounds of relevancy and materiality.

(b) The Board record shall consist of the appeal file described in § 4.103 (b) (1) and any additional material, pleadings,

prehearing briefs, record of prehearing, or presubmission conferences, depositions, interrogatories, admissions, transcripts of hearing, hearing exhibits, and posthearing briefs, as may thereafter be developed pursuant to these rules. In deciding appeals the Board in addition to considering the Board record may take official notice of facts within general knowledge.

(c) This record will at all times be available for inspection by the parties at an appropriate time and place. In the interest of convenience, prior arrangements for inspection of the file should be made with the Recorder of the Board. Copies of material in the record may be furnished to appellant as provided in part 2 of this subtitle.

§ 4.115

Discovery-Depositions.

(a) General policy and protective orders. The parties are encouraged to engage in voluntary discovery procedures. In connection with any deposition or other discovery procedure, the Board may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, and those orders may include limitations on the scope, method, time and place for discovery, and provisions for protecting the secrecy of confidential information or documents.

(b) When depositions permitted. After an appeal has been docketed and complaint filed, the parties may mutually agree to, or the Board may, upon application of either party and for good cause shown, order the taking of testimony of any person by deposition upon oral examination or written interrogatories before any officer authorized to administer oaths at the place of examination, for use as evidence or for purpose of discovery. The application for order shall specify whether the purpose of the deposition is discovery or for use as evidence.

(c) Orders on depositions. The time, place, and manner of taking depositions shall be as mutually agreed by the parties, or, failing such agreement, governed by order of the Board.

(d) Use as evidence. No testimony taken by depositions shall be considered as part of the evidence in the hearing of an appeal unless and until such testi

mony is offered and received in evidence at such hearing. It will not ordinarily be received in evidence if the deponent is present and can testify personally at the hearing. In such instances, however, the deposition may be used to contradict or impeach the testimony of the witness given at the hearing. In cases submitted on the record, the Board may in its discretion receive depositions as evidence in supplementation of that record.

(e) Expenses. Each party shall bear its own expenses associated with the taking of any deposition.

[40 FR 5528, Feb. 6, 1975]

§ 4.116

Interrogatories to parties; inspection of documents; admission of facts.

Under appropriate circumstances, but not as a matter of course, the Board will entertain applications for permission to serve written interrogatories upon the opposing party, applications for an order to produce and permit the inspection of designated documents, and applications for permission to serve upon the opposing party a request for the admission of specified facts. Such applications shall be reviewed and approved only to the extent and upon such terms as the Board in its discretion considers to be consistent with the objective of securing just and inexpensive determination of appeals without unnecessary delay, and essential to the proper pursuit of that objective in the particular case.

(5 U.S.C. 301)

[40 FR 5528, Feb. 6, 1975]

§ 4.117 Service of papers.

A copy of all pleadings, briefs, or other papers addressed to the Board, except the appeal file, shall be served on the other party at the time of filing with the Board. Service of papers may be made personally or by mailing same in a sealed envelope addressed to the other party. When a party is represented by an attorney, certificates of mailing (or stating that personal service was made) should be provided to the Board.

HEARINGS

§ 4.118 Hearings; where and when held. Hearings may be held in Arlington, Va., or upon timely request and for good cause shown, the Board may in its dis

The parties shall be given at least 15 days' notice of the time and place set for hearings. In scheduling hearings, the Board will give due regard to the desires of the parties, and to the requirement for just and prompt determination of appeals. Receipt of a notice of hearing shall be promptly acknowledged by the parties. A party failing to acknowledge a notice of hearing shall be deemed to have consented to the indicated time and place of hearing. § 4.120

Unexcused absence of a party.

The unexcused absence of a party at the time and place set for hearing will not be occasion for delay. In the event of such absence, the hearing will proceed and the case will be regarded as submitted by the absent party as provided in § 4.112. The Board shall advise the absent party of the content of the proceedings had and that he has 5 days from the receipt of such notice within which to show cause why the appeals should not be decided on the record made.

Hearings shall be as informal as may be reasonable and appropriate in the circumstances. Appellant and respondent may offer at a hearing on the merits such relevant evidence as they deem appropriate and as would be admissible under the generally accepted rules of evidence applied in the courts of the United States in nonjury trials, subject, however, to the sound discretion of the presiding member or examiner in supervising the extent and manner of presentation of such evidence. In general, admissibility will hinge on relevancy and materiality. Letters or copies thereof, affidavits, or other evidence not ordinarily admissible under the generally accepted rules of evidence, may be admitted in the discre

tion of the presiding member or examiner. The weight to be attached to evidence presented in any particular form will be within the discretion of the Board, taking into consideration all the circumstances of the particular case. Stipulations of fact agreed upon by the parties may be regarded and used as evidence at the hearing. The parties may stipulate the testimony that would be given by a witness if the witness were present. The Board may in any case require evidence in addition to that offered by the parties.

§ 4.122

Examination of witnesses.

Witnesses before the Board will be examined orally under oath or affirmation, unless the facts are stipulated, or the presiding Board member or examiner shall otherwise order. If the testimony of a witness is not given under oath the presiding Board member or examiner shall call to the attention of the witness the provisions of title 18, United States Code, sections 287 and 1001, prescribing penalties for knowingly making false representations in connection claims against the United States or in any matter within the jurisdiction of any department or agency thereof. § 4.123 Posthearing briefs.

with

eration of a decision, which may include a hearing or rehearing, may be granted if, in the judgment of the Board, sufficient reason therefor appears.

DISMISSAL WITHOUT PREJUDICE

§ 4.126

Dismissal without prejudice.

In certain cases, appeals docketed before the Board reach a stage where the Board is unable to proceed with disposition thereof for reasons not within the control of the Board. In any such case where the inability to take action upon the appeal has continued, or it appears that it will continue, for an inordinate length of time, the Board may in its discretion dismiss such appeal from its docket without prejudice to its restoration when the cause of delay has been removed, and when the parties have complied with conditions specified by the Board in its dismissal order.

In the event of failure of a party to comply with a request of the Board for production of documents or other material, or to make available an officer, director, official, or employee of such party, or failure to answer written interrogatories or questions on oral examination without showing just cause or excuse for such failure to the Board, the Board may (a) decide the fact or issue relating to the material which the Board has requested to be produced, or relating to what might have been elicited from the person whose testimony was requested, in accordance with the claim of the other party or in accordance with other evidence available to the Board; (b) dismiss all or part of an appeal in appropriate circumstances; or (c) make such other ruling as the Board determines is just and proper.

REMANDS FROM COURTS

§ 4.128 Remands from courts.

Whenever any matter is remanded to the Board from any court for further proceedings, each of the parties shall, within 20 days of such remand, submit a report to the Board, recommending procedures to be followed in order to comply with the court's order. The Board will review the reports and enter special orders

Subpart D-Special Rules Applicable to Proceedings in Indian Probate, Including Hearings and Appeals; Tribal Purchase of Interests Under Special Statutes, Including Hearings and Appeals; and Administrative Appeals in Indian Affairs Generally

AUTHORITY: The provisions of this Subpart D issued under secs. 1, 2, 36 Stat. 855, as amended, 856, as amended, sec. 1, 38 Stat. 586, 42 Stat. 1185, as amended, secs. 1, 2, 56 Stat. 1021, 1022; R.S. 463, 465; 5 U.S.C. 301; 25 U.S.C. secs. 2, 9, 372, 373, 374, 373a, 373b.

[ Cross reference: See Subpart A for the authority, jurisdiction and membership of the Board of Indian Appeals within the Office of Hearings and Appeals. For general rules applicable to proceedings before the Board of Indian Appeals as well as the other Appeals Boards of the Office of Hearings and Appeals, see Subpart B]

DETERMINATIONS OF HEIRS AND APPROVAL OF WILLS, EXCEPT AS TO MEMBERS OF THE FIVE CIVILIZED TRIBES AND OSAGE INDIANS; TRIBAL PURCHASE OF INTERESTS UNDER SPECIAL STATUTES 2

SCOPE OF REGULATIONS; DEFINITIONS; GENERAL AUTHORITY OF ADMINISTRATIVE LAW JUDGES

§ 4.200 Scope of regulations.

Included in §§ 4.200 through 4.202 are general rules applicable to all proceedings in Subpart D of this part. Included in §§ 4.203 through 4.297 are procedural rules applicable to the settlement of trust estates of deceased Indians who die possessed of trust property, except deceased Indians of the Five Civilized Tribes, deceased Osage Indians, and members of any tribe organized under 25 U.S.C. sec. 476 (1970), to the extent that the constitution, by-laws or charter of each tribe may be inconsistent with this subpart. Included within §§ 4.300 through 4.317 are supplemental procedural rules applicable to determinations as to tribal purchase of certain property interests of decedents under special laws applicable to particular tribes. Included with §§ 4.350 through 4.369 are procedural rules applicable to appeals to the Board of Indian Appeals from administrative actions or decisions issued by the Commissioner of the Bureau of Indian Affairs as set forth in § 4.351. Except as limited by the provisions herein, the rules in Subparts A and B of this part apply to these proceedings.

[40 FR 20819, May 13, 1975] § 4.201

Definitions.

As used in this subpart:

(a) The term "Secretary" means the Secretary of the Interior or his authorized representative;

(b) The term "Board" means the Board of Indian Appeals in the Office of Hearings and Appeals, Office of the Secretary, authorized by the Secretary to hear, consider, and determine finally for the Department appeals taken by aggrieved parties from actions by Administrative Law Judges on petitions for rehearing or reopening, and allowance of attorney fees;

2 39 FR 31636, August 30, 1974.

(c) The term "Commissioner" means the Commissioner of Indian Affairs or his authorized representative;

(d) The term "Superintendent" means the Superintendent or other officer having jurisdiction over an estate, including area field representatives or one holding equivalent authority;

(e) The terms "agency" and "Indian agency" mean the Indian agency or any other designated office in the Bureau of Indian Affairs having jurisdiction over trust property;

(f) "Administrative Law Judge" (hereinafter called Administrative Law Judge) means any employee of the Office of Hearings and Appeals upon whom authority has been conferred by the Secretary to conduct hearings in accordance with the regulations in this subpart;

(g) The term "Solicitor" means the Solicitor of the Department of the Interior or his authorized representative;

(h) The term "Department" means the Department of the Interior;

(i) The term "parties in interest" means any presumptive or actual heir, any beneficiary under a will, any party asserting a claim against a deceased Indian's estate, and any Tribe having a statutory option to purchase interests of a decedent.

(j) The term "minor" means an individual who has not reached his majority as defined by the laws of the State where the deceased's property is situated;

(k) The words "child" or "children" include adopted child or children;

(1) The words "will" and "last will and testament" include codicils thereto;

(m) The term "trust property" means real or personal property title to which is in the United States for the benefit of an Indian. In this subpart "restricted property" (real or personal property held by an Indian which he may not alienate without the consent of the Secretary or his authorized representative) is treated as if it were trust property, and conversely trust property is treated as restricted property.

[36 FR 7186, Apr. 15, 1971, as amended at 39 FR 31636, Aug. 30, 1974]

testate possessed of trust property, except as otherwise provided in §§ 4.205(b) and 4.271; approve or disapprove wills of deceased Indians disposing of trust property; and allow or disallow creditors' claims against estates of deceased Indians. They shall determine the right of a tribe to take inherited interests and the fair market value of the interests taken in appropriate cases as provided by statute. They shall hold hearings and issue recommended decisions in matters referred to them by the Board in the Board's consideration of appeals from administrative actions of officials of the Bureau of Indian Affairs.

[36 FR 7186, Apr. 15, 1971, as amended at 40 FR 20820, May 13, 1975]

DETERMINATION OF HEIRS; APPROVAL OF WILLS; SETTLEMENT OF INDIAN TRUST ESTATES

§ 4.203 Determinations as to nonexistent persons and other irregularities of allotments.

(a) Administrative Law Judges shall hear and determine whether trust patents covering allotments of land were issued to nonexistent persons, and whether more than one trust patent covering allotments of land had been issued to the same person under different names and numbers or through other errors in identification.

(b) If an Administrative Law Judge determines under paragraph (a) of this section that a trust patent did issue to an existing person or that separate persons did receive the allotments under consideration and any one of them is deceased, without having had his estate probated, he shall proceed as provided in § 4.202.

(c) If an Administrative Law Judge determines under paragraph (a) of this section that a person did not exist or that there were more than one allotment issued to the same person, he shall issue a decision to that effect, giving notice thereof to parties in interest as provided in § 4.240(b).

[36 F.R. 7186, Apr. 15, 1971; 36 F.R. 7588, Apr. 22, 1971]

§ 4.204 Presumption of death.

(a) Administrative Law Judges shall receive evidence on and determine the issue of whether persons, by reason of