ably in writing by the parties in interest to their advantage and to the advantage of the United States, such an agreement may be approved by the administrative law judge upon findings that:

(1) All parties to the compromise are fully advised as to all material facts;

(2) All parties to the compromise are fully cognizant of the effect of the compromise upon their rights; and

(3) It is in the best interest of the parties to settle rather than to continue litigation.

(b) In considering the proposed settlement, the administrative law judge may take and receive evidence as to the respective values of specific items of property. Superintendents and irrigation project engineers shall supply all necessary information concerning any liability or lien for payment of irrigation construction and of irrigation operation and maintenance charges.

(c) Upon an affirmative determination as to all three points specified, the administrative law judge shall issue such final order of distribution in the settlement of the estate as is necessary to approve the same and to accomplish the purpose and spirit of the settlement. Such order shall be construed as any other order of distribution establishing title in heirs and devisees and shall not be construed as a partition or sale transaction within the provisions of Part 121, Title 25, Code of Federal Regulations. If land titles are to be transferred, the necessary deeds shall be prepared and executed at the earliest possible date. Upon failure or refusal of any party in interest to execute and deliver any deed necessary to accomplish the settlement, the administrative law judge shall settle the issues and enter his order as if no agreement had been attempted.

(d) Administrative law judges are authorized to approve all deeds or conveyances necessary to accomplish a settlement under this section.

COMMENCEMENT OF PROBATE

PROCEEDINGS

§ 4.210 Commencement of probate. (a) Within the first 7 days of each month, each Superintendent shall pre

pare and furnish to the appropriate administrative law judge a list of the names of all Indians who have died and whose names have not been previously reported.

(b) Within 90 days of receipt of notice of death of an Indian who died owning trust property, the Superintendent having jurisdiction thereof shall commence the probate of the trust estate by filing with the appropriate administrative law judge all data shown in the records relative to the family of the deceased and his property. The data shall include but is not limited to:

(1) A copy of the death certificate or its equivalent;

(2) Data for heirship findings and family history, certified by the Superintendent, on a form approved by the Director, Office of Hearings and Appeals, such data to contain:

(i) The facts and alleged facts of deceased's marriages, separations and divorces, with copies of necessary supporting documents;

(ii) The names and last known addresses of probable heirs and other known parties in interest, including known creditors;

(iii) Information on whether the relationship of the probable heirs to the deceased arose by marriage, blood, or adoption;

(iv) The names, relationships to the deceased, and last known addresses of beneficiaries and attesting witnesses when a will or purported will is involved; and

(v) If will beneficiaries are not probable heirs of the deceased, the names of the tribes in which they are members;

(3) A certified inventory of the trust real and personal property wherever situated, in which the deceased had any right, title or interest at the time of his death (including all moneys and credits in a trust status whether in the form of bonds, undistributed judgment funds, or any other form and the source of each fund in the account), showing both the total estimated value of the real property and the estimated value of the deceased's interest therein, and the amount and names and addresses of parties having an ap

(4) The original and copies of all wills in the Superintendent's custody, if any; the original and copies of codicils to and revocations of wills, if any; and any paper, instrument, or document that purports to be a will;

(5) The Superintendent shall transmit to the administrative law judge all creditors' and other claims which have been filed and, thereafter, he shall transmit all additional claims immediately upon the filing thereof.

(c) Where a tribe has the statutory option to purchase interests of a decedent, the Superintendent shall include in the data specified in paragraph (b) of this section with respect to each probable heir or devisee a showing of the enrollment status in all cases and, where required by statute, the blood quantum in the tribe concerned, and such information as listed shall constitute prima facie evidence of the facts there shown. The inventory shall be verified by the title plant designated under § 4.236(b) that it is complete and accurate.

(d) Where a Tribe has a statutory option to purchase interests of a decedent the Superintendent shall include in the data specified in paragraph (b) of this section, a showing of the enrollment status in all cases and where required by statute the blood quantum in the Tribe concerned, with respect to each probable heir and devisee, and the inventory shall be verified by the title plant designated under § 4.236(b) that it is complete and accurate.

[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 24813, Dec. 23, 1971; 39 FR 31636, Aug. 30, 1974; 45 FR 50331, July 29, 1980]

person or official who performs the act.

(b) The administrative law judge shall serve or cause to be served a copy of the notice on each party in interest reported to the administrative law judge and on each attesting witness if a will is offered:

(1) By personal service in sufficient time in advance of the date of the hearing to enable the person served to attend the hearing; or

(2) By mail, addressed to the person at his last known address, in sufficient time in advance of the date of the hearing to enable the addressee served to attend the hearing. The administrative law judge shall cause a certificate, as to the date and manner of such mailing, to be made on the record copy of the notice.

(c) All parties in interest, known and unknown, including creditors, shall be bound by the decision based on such hearing if they lived within the vicinity of any place of posting during the posting period, whether they had actual notice of the hearing or not. As to those not within the vicinity of the place of posting, a rebuttable presumption of actual notice shall arise upon the mailing of such notice at a reasonable time prior to the hearing, unless the said notice is returned by the postal service to the administrative law judge's office unclaimed by the addressee.

(d) Tribes to be charged with notice of death and probate. When a record reveals that a Tribe has a statutory option to purchase interests of a decedent, such Tribe shall be notified of the pendency of a proceeding by the judge having probate jurisdiction in such proceeding, and the judge's certificate of mailing of notice of probate hearing or of a final decision in probate to the Tribe at its record address shall be conclusive evidence for all purposes that the Tribe had notice of decedent's death and notice of the pendency of the probate proceedings.

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

§ 4.212 Contents of notice.

(a) In the notice of hearing, the administrative law judge shall specify

that at the stated time and place he will take testimony to determine the heirs of the deceased person (naming him) and, if a will is offered for probate, testimony as to the validity of the will describing it by date. The notice shall name all known presumptive heirs of the decedent, and, if a will is offered for probate, the beneficiaries under such will and the attesting witnesses to the will. The notice shall cite this subpart as the authority and jurisdiction for holding the hearing, and shall inform all persons having an interest in the estate of the decedent, including persons having claims or accounts against the estate, to be present at the hearing or their rights may be lost by default.

(b) The notice shall state further that the hearing may be continued to another time and place. A continuance may be announced either at the original hearing by the administrative law judge or by an appropriate notice posted at the announced place of hearing on or prior to the announced hearing date and hour.

DEPOSITIONS, DISCOVERY, AND PREHEARING CONFERENCE

§ 4.220 Production of documents for inspection and copying.

(a) At any stage of the proceeding prior to the conclusion of the hearing, a party in interest may make a written demand, a copy to be filed with the administrative law judge, upon any other party to the proceeding or upon a custodian of records on Indians or their trust property, to produce for inspection and copying or photographing, any documents, papers, records, letters, photographs, or other tangible things not privileged, relevant to the issues which are in the other party's or custodian's possession, custody, or control. Upon failure of prompt compliance the administrative law judge may issue an appropriate order upon a petition filed by the requesting party. At any time prior to closing the record, the administrative law judge upon his own motion, after notice to all parties, may issue an order to any party in interest or custodian of records for the production of material

or information not privileged, and relevant to the issues.

(b) Custodians of official records shall furnish and reproduce documents, or permit their reproduction, in accordance with the rules governing the custody and control thereof.

§ 4.221 Depositions.

(a) Stipulation. Depositions may be taken upon stipulation of the parties. Failing an agreement therefor, depositions may be ordered under paragraphs (b) and (c) of this section.

(b) Application for taking deposition. When a party in interest files a written application, the administrative law judge may at any time thereafter order the taking of the sworn testimony of any person by deposition upon oral examination for the purpose of discovery or for use as evidence at a hearing. The application shall be in writing and shall set forth:

(1) The name and address of the proposed deponent;

(2) The name and address of that person, qualified under paragraph (d) of this section to take depositions, before whom the proposed examination is to be made;

(3) The proposed time and place of the examination, which shall be at least 20 days after the date of the filing of the application; and

(4) The reasons why such deposition should be taken.

(c) Order for taking deposition. If after examination of the application the administrative law judge determines that the deposition should be taken, he shall order its taking. The order shall be served upon all parties in interest and shall state:

(1) The name of the deponent;

(2) The time and place of the examination which shall not be less than 15 days after the date of the order except as stipulated otherwise; and

(3) The name and address of the officer before whom the examination is to be made. The officer and the time and place need not be the same as those requested in the application.

(d) Qualifications of officer. The deponent shall appear before the administrative law judge or before an officer authorized to administer oaths by the

law of the United States or by the law of the place of the examination.

(e) Procedure on examination. The deponent shall be examined under oath or affirmation and shall be subject to cross-examination. The testimony of the deponent shall be recorded by the officer or someone in his presence. An applicant who requests the taking of a person's deposition shall make his own arrangements for payment of any costs incurred.

(f) Submission to witness; changes; signing. When the testimony is fully transcribed, the deposition shall be submitted to the deponent for examination and shall be read to or by him, unless such examination and reading are waived by the deponent or by all other parties in interest. Any changes in form or substance which the deponent desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the deponent for making them. The deposition shall then be signed by the deponent, unless the parties in interest by stipulation waive the signing, or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the deponent, the officer shall sign it and state on the record the fact of the waiver, or of the illness or absence of the deponent or the fact of the refusal to sign together with the reason, if any, given therefor; the deposition may then be used as fully as though signed, unless the administrative law judge holds that the reason given for refusal to sign requires rejection of the deposition in whole or in part.

(g) Certificates by officer. The officer shall certify on the deposition that the deponent was duly sworn by him and that the deposition is a true record of the deponent's testimony. He shall then securely seal the deposition, together with two copies thereof, in an envelope and shall personally deliver or mail the same by certified or registered mail to the administrative law judge.

(h) Use of depositions. A deposition ordered and taken in accord with the provisions of this section may be used in a hearing if the administrative law judge finds that the witness is absent and his presence cannot be readily ob

tained, that the evidence is otherwise admissible, and that circumstances exist that make it desirable in the interest of fairness to allow the deposition to be used. If a deposition has been taken, and the party in interest on whose application it was taken refuses to offer the deposition, or any part thereof, in evidence, any other party in interest or the administrative law judge may introduce the deposition or any portion thereof on which he wishes to rely.

§ 4.222 Written interrogatories; admission of facts and documents.

At any time prior to a hearing and in sufficient time to permit answers to be filed before the hearing, a party in interest may serve upon any other party in interest written interrogatories and requests for admission of facts and documents. A copy of such interrogatories and requests shall be filed with the administrative law judge. Such interrogatories and requests for admission shall be drawn with the purpose of defining the issues in dispute between the parties and facilitating the presentation of evidence at the hearing. Answers shall be served upon the party propounding the written interrogatories or requesting the admission of facts and documents within 30 days from the date of service of such interrogatories or requests, or within such other period of time as may be agreed upon by the parties or prescribed by the administrative law judge. A copy of the answer shall be filed with the administrative law judge. Within 10 days after written interrogatories are served upon a party, that party may serve cross-interrogatories for answer by the witness to be interrogated. [51 FR 18328, May 19, 1986]

§ 4.223 Objections to and limitations on production of documents, depositions, and interrogatories.

The administrative law judge, upon motion timely made by any party in interest, proper notice, and good cause shown, may direct that proceedings under §§ 4.220, 4.221, and 4.222 shall be conducted only under, and in accordance with, such limitation as he deems necessary and appropriate as to

documents, time, place, and scope. The administrative law judge may act on his own motion only if undue delay, dilatory tactics, and unreasonable demands are made so as to delay the orderly progress of the proceeding or cause unacceptable hardship upon a party or witness.

§ 4.224 Failure to comply with orders.

In the event of the failure of a party to comply with a request for the production of a document under § 4.220; or on the failure of a party to appear for examination under § 4.221 or on the failure of a party to respond to interrogatories or requests for admissions under § 4.222; or on the failure of a party to comply with an order of the administrative law judge issued under § 4.223 without, in any of such events, showing an excuse or explanation satisfactory to the administrative law judge for such failure, the administrative law judge may:

(a) Decide the fact or issue relating to the material requested to be produced, or the subject matter of the probable testimony, in accordance with the claims of the other party in interest or in accordance with other evidence available to the administrative law judge; or

(b) Make such other ruling as he determines just and proper.

HEARINGS

§ 4.230 Administrative law judge; authority and duties.

The authority of the administrative law judge in all hearings in estate proceedings includes, but is not limited to authority:

(a) To administer oaths and affirmations;

(b) To issue subpoenas under the provisions of 25 U.S.C. 374 (1964) upon his own initiative or within his discretion upon the request of any party in interest, to any person whose testimony he believes to be material to a hearing. Upon the failure or refusal of any person upon whom a subpoena shall have been served to appear at a hearing or to testify, the administrative law judge may file a petition in the appropriate U.S. District Court for the issuance of an order requiring the appearance and testimony of the wit

ness:

(c) To permit any party in interest to cross-examine any witness;

(d) To appoint a guardian ad litem to represent any minor or incompetent party in interest at hearings;

(e) To rule upon offers of proof and receive evidence;

(f) To take and cause depositions to be taken and to determine their scope; and

(g) To otherwise regulate the course of the hearing and the conduct of witnesses, parties in interest, and attorneys at law appearing therein.

§ 4.231 Hearings.

(a) All testimony in Indian probate hearings shall be under oath and shall be taken in public except in those circumstances which in the opinion of the administrative law judge justify all but parties in interest to be excluded from the hearing.

(b) The proceedings of hearings shall be recorded verbatim and transcribed and made a part of the record.

(c) The record shall include a showing of the names of all parties in interest and of attorneys who attended such hearing.