those listed in § 121.51 and the factors to be considered in connection with the application shall be the same as those listed in § 121.53. If an order removing restrictions is granted, it shall be effective upon issuance and the effect thereof shall be the same as that described in § 121.52.

(c) If an application for the removal of restrictions pursuant to section 2(a) of the act of August 11, 1955 (69 Stat. 666), is disapproved or there is a failure to approve or disapprove within 90 days of the date of the application, the Indian applicant may apply to the county court for the county in which he or she resides for an order removing restrictions. [24 F.R. 3692, May 7, 1959]

With the exception of applications for removal of restrictions filed under section 2(a) of the act of August 11, 1955 (69 Stat. 666), which removals are unconditional, when the Secretary of the Interior finds it to be for the best interest of any applicant that all or part of his restricted lands should be sold with conditions concerning terms of sale and disposal of the proceeds, he may remove the restrictions, to become effective only and simultaneously with the execution of a deed by said applicant and issue an order specifically providing the terms under which the land may be sold and providing for the disposal of the proceeds.

[24 F.R. 3693, May 7, 1959] § 121.37

Advertising lands for sale.

The superintendent for the Five Civilized Tribes will advertise for sale at public auction for not less than 30 days the land included in conditional removal of restrictions orders by posting notices at his office; at the offices of the several field clerks, and at the county court houses of the Five Civilized Tribes area. Such notices shall contain information as to time and place of sale, legal description of the land, information as to character of land, minimum price at which the land may be sold, and terms of sale, with reservation of right to reject any bid submitted. The determination of the minimum price at which lands may be sold will be made by the superintendent after an inspection and appraisement of the land by a representative of his office. No bid for an amount less than the minimum price will be considered.

All cost of conveyance and recording shall be at the expense of the purchaser. § 121.38 Bids; how made and accepted.

Bids may be made in writing on any of the lands to be offered for sale. Any written bid submitted to be given consideration must be received at the place of sale prior to the hour of sale by the officer named in the notice offering the land for sale and accompanied by a deposit of 10 percent of the amount bid. Deposits accompanying unsuccessful bids will be returned promptly. Each successful oral bid must be accompanied by a deposit of 10 percent of the amount bid as guaranty of faithful compliance of the bidder with the terms of sale. § 121.39 Fees and consideration for sale; acceptance and deposit.

(a) A remittance of $20 will be required from the successful bidder as a land sale fee on each tract sold. This fee is collected for the purpose of paying for the work incident to the sale as required by the act of February 14, 1920, as amended by the act of March 1, 1933 (47 Stat. 1417; 25 U.S.C. 413). Where the circumstances justify a reduction in the sales fee the Secretary of the Interior may reduce the amount. The sales fee if conditions warrant and the advertisement so provides may be deducted from the proceeds of the sale.

(b) If a bid is accepted and the successful bidder shall fail within 10 days from the receipt of notice of the acceptance of his bid, to comply with the terms thereof, such deposit will be subject to forfeiture by the superintendent for the Five Civilized Tribes for the use of the owner of the land.

(c) The proceeds of all such sales shall be held by said superintendent for the Five Civilized Tribes in his official capacity, and be disbursed for the benefit of the respective Indians.

(Sec. 1, 41 Stat. 415, as amended; 25 U. S. C. 413)

§ 121.40 Deferred payment sales; how made.

Upon the approval by the Secretary of the Interior of a conditional order for the removal of restrictions the land covered thereby to be sold under the supervision of the superintendent for the Five Civilized Tribes, the said superintendent is hereby authorized, in such cases as he considers to be for the best interests of the respective allottees so to

do, to advertise and sell said land at public auction for not less than the appraised value for cash or upon deferred payments, any such deferred payment sales to be made under the following terms:

(a) Where the consideration is $500 or less, at least one-half to be paid in cash at the time of the sale and the remainder to be evidenced by purchasers' notes due and payable in not more than 18 months after the date of purchase and secured by first mortgage on the premises conveyed.

(b) Where the consideration exceeds $500 and is not more than $1,500, at least one-third to be paid in cash at the time of sale and the remainder in two equal payments evidenced by the purchaser's note or notes to fall due not more than 21⁄2 years from date of purchase, and secured by first mortgage on the premises conveyed.

(c) Where the consideration exceeds $1,500 at least one-fourth to be paid in cash at the time of sale and the remainder in three equal payments evidenced by purchaser's note or notes to fall due not more than 31⁄2 years from the date of purchase and secured by first mortgage on the premises conveyed. § 121.41 Cash payments; how counted.

ac

All cash payments at the time of sale to be paid into the hands of the cashier and special disbursing agent for the Five Civilized Tribes, Muskogee, Oklahoma, or his successor in authority, and all notes and mortgages securing same to contain the express condition that no payment purporting to discharge, satisfy, or release the indebtedness evidenced thereby shall operate as a release, satisfaction, discharge, or payment thereof unless such payments and interest accruing thereon are made to the said cashier or his successor, for the benefit of the proper allottees, or if such note or notes are properly negotiated with the approval of the Secretary of the Interior, to the owner or owners of such notes, and such notes shall be nonnegotiable except with the approval of the said Secretary. The note or notes shall be held by the said cashier or his successor for collection when due. Said notes shall draw interest from date of execution until paid at the rate of 6 percent per annum.

§ 121.42 Deferred payments; how accounted.

All moneys received by the cashier or his successor as consideration for land, including moneys received on account of deferred payments and accrued interest thereon, shall be deposited or held to the credit of the proper allottee in individual Indian accounts and be subject to the rules, regulations and orders of this Department governing the holding of moneys so deposited and the disbursement thereof.

CROSS REFERENCES: For individual Indian money regulations, see Part 104 of this chapter. For deposit of Indian funds in banks, see Part 105 of this chapter.

§ 121.43

Consummation of sale.

Upon the consummation of a sale in compliance with the regulations in this part the superintendent, or other officer in charge of the office of the Five Civilized Tribes, will make appropriate endorsements upon the order for the removal of restrictions from the land sold and on the deed of conveyance as prescribed by Forms Five Civilized Tribes 5-540 and 5-183c.1 The order for the removal of restrictions and the deed thus endorsed shall, after proper record thereof has been made at the office of the said superintendent, be delivered to the grantee,

121.44

Reinvestment of funds in restricted nontaxable land.

In any case where lands are purchased for the use and benefit of any citizen of the Five Civilized Tribes of the restricted class, payment for which is made from proceeds arising from the sale of restricted nontaxable land, the said superintendent shall cause conveyance of such lands to be made on form of conveyance containing an habendum clause against alienation, taxation, or encumbrances, as follows:

TO HAVE AND TO HOLD said described premises, unto said grantee

heirs and assigns, forever, free, clear, and discharged of all former grants, charges, taxes, judgments, mortgages, and other liens and encumbrances of whatsoever nature, subject to the condition that no lease deed, mortgage, power of attorney, contract to sell, or other instrument affecting the land herein described or the title thereto shall be of any force and effect, unless approved by

1 For further information regarding forms, see § 121.34.

Before delivery and recording of such deed of conveyance the said superintendent will attach a certificate of notice in the following form:

I hereby certify that the land described in the above deed was purchased for a home for the said with funds HELD IN TRUST by the United States for H....... derived from the sale of restricted lands as authorized by the terms of the act of March 2, 1931 (46 Stat. 1471) as amended June 30, 1932 (47 Stat. 474), and is nontaxable as therein provided.

Superintendent for the Five Civilized Tribes.

§ 121.46 Purchase of restricted, nontaxable personal property with restricted funds.

In all cases where purchases of automobiles, horses, wagons, buggies, cattle, agricultural implements, or other personal property are made for individual Indians, payments for which are made from moneys received from the sale of restricted allotted lands, or from other moneys held under the control of the Department of the Interior, the superintendent for the Five Civilized Tribes will, when in his judgment it is to the Indian's best interest, cause a bill of sale to be executed by the vendor or vendors conveying the property purchased to the United States, to be held in trust for the use and benefit of the respective allottees or their heirs who are of the restricted class.

(a) The superintendent for the Five Civilized Tribes may cause all such property to be branded on some prominent place, "USIS" to indicate that the property was purchased by the United States through the Indian service.

(b) The law of the State of Oklahoma shall be followed in taking bills of sale. The bill of sale should be filed at the office of the county clerk for the county in which the property is located and duplicate thereof retained in the office of the superintendent for the Five Civilized Tribes.

(c) Before filing the bill of sale, certificate of notice shall be indorsed thereon by the said superintendent or

such other officer of the Department as he may designate for the purpose, evidencing the official character of the transaction and the nature of the funds affected.

§ 121.48 Alienation of property covered by bill of sale; invalid unless previously authorized.

No sale, mortgage, or other disposition of the property covered by a bill of sale, as provided in the regulations in this part, shall be of any force or validity except with the written consent previously obtained and the approval subsequently given of the superintendent for the Five Civilized Tribes, or such other officer as he may designate for the purpose; and in the event the Indian attempts to sell, mortgage, or otherwise dispose of such property the said superintendent shall promptly notify the Department to that effect, forwarding the original bill of sale in order that proper proceedings may be instituted for the recovery of the property.

REMOVAL OF RESTRICTIONS AGAINST ALIENATION, EXCLUSIVE OF FIVE CIVILIZED TRIBES LAND

An Indian may apply for the removal of restrictions from land acquired by purchase, exchange or gift, and devised and inherited interests therein, held under an instrument of conveyance which recites that the land shall not be sold or alienated without the consent or approval of the Superintendent, the Commissioner of Indian Affairs, or the Secretary of the Interior. An application for the removal of restrictions from such land shall be filed with the superintendent or other officer in charge of the Indian agency or other local facility having administrative jurisdiction over the land. The application shall set forth the experience the applicant has had in the transaction of his business affairs and the reasons why a removal of restrictions is desired. If it appears that the applicant is competent and capable of managing his affairs or that the removal of restrictions is otherwise in the best interests of the applicant, an order removing restrictions against alienation of the land may be issued. Prior to the issuance of such an order the land shall be appraised at its fair market value.

REMOVAL OF RESTRICTIONS, FIVE CIVILIZED TRIBES

SOURCE: 121.51 to 121.57 appear at 23 F.R. 6494, Aug. 22, 1958.

§ 121.51

Removal of restrictions.

Upon a determination by the Secretary of the Interior that an adult Indian of the Five Civilized Tribes owning trust or restricted property possesses sufficient ability, knowledge, experience, and judgment to enable him to manage his business affairs, including the administration, use, investment, and disposition of any property turned over to such person and the income or proceeds therefrom, with such reasonable degree of prudence and wisdom as will be apt to prevent him from losing such property or the benefits thereof, the Secretary or his authorized representative shall issue, without application therefor by the Indian affected, an order removing restrictions. § 121.52 Effect of order.

When an order becomes effective, the Secretary shall cause to be turned over to the Indian full ownership and control of any money and property that is held in trust for him or that is held subject to a restriction againt alienation imposed by the United States, issuing, in the case of land, such title document as may be appropriate; provided, that the Secretary may make such provisions as he deems necessary to insure payment of money loaned to any such Indian by the Federal Government or by an Indian tribe, and provided further, that the interest of any lessee or permittee in any lease, contract, or permit that is outstanding when an order removing restrictions become effective shall be preserved as provided in section 2(d) of the act of August 11, 1955. The effect of such order also shall be to terminate the Indian's eligibility for all special services provided for him by the Department of the Interior because of his status as an Indian, except in cases (a) where it is determined by the Secretary, or his authorized representative, that the termination of eligibility because of such order will result in substantial hardship for the Indian, and (b) where the Secretary, or his authorized representative, is directed by law to provide such special services for the Indian, and if he inherits or there is devised to him interests in trust or restricted property, subsequent to the effective date of the order, the property

will be acquired without restrictions. Any existing exemption from taxation that constitutes a vested property right shall continue in force and effect until it terminates by virtue of its own limitations.

§ 121.53 Factors to be considered.

Prior to the issuance of an order removing restrictions, all or part of the following factors, as appropriate, shall be considered in arriving at a decision, and any other factors that may be pertinent;

(a) The extent of the Indian's education and the nature of his training and experience, including business experience, and the manner in which he has demonstrated his ability to manage his own affairs without assistance or supervision.

(b) The extent to which he has made an adequate living for himself and family; the extent to which he has required assistance from the Government, tribe, or other agency or organization in the matter of loans, relief, old-age assistance, aid to dependent children, unemployment compensation, old-age and survivors insurance, etc.; and the extent, if any, his family has been dependent on the income from trust or restricted property.

(c) The assets, including land and improvements, farm equipment, livestock, etc., he, or his family has; the property, real or personal, he has acquired through his own efforts.

(d) The manner in which he has used assets and funds coming into his possession, whether through earnings, inheritance or otherwise.

(e) The state of his health and physical capacities, insofar as they affect his ability to manage his own affairs.

(f) The value of his property in relation to his demonstrated degree of ability to manager his own affairs.

§ 121.54 Notice of intent to issue order.

Prior to the issuance of an order removing restrictions the Indian will be notified in writing that:

(a) Section 2(b) of the act of August 11, 1955 (69 Stat. 666), directs the Secretary of the Interior to issue an order removing restrictions to any Indian of the Five Civilized Tribes who, in the judgment of the Secretary, has sufficient ability, knowledge, experience, and judgment to enable him to manage his business affairs, including the administration, use, investment, and disposition

of any property turned over to such person and the income or proceeds therefrom, with such reasonable degree of prudence and wisdom as will be apt to prevent him from losing such property or the benefits thereof.

(b) He has been determined tentatively to be in the category defined by the statute, and an order removing restrictions will be issued 60 days after the date of the notice, unless he or someone acting in his behalf, presents persuasive reasons for not issuing the order. Such reasons should be in writing and received in the office issuing the notice before the end of the 60-day period.

(a) If no objection is filed, as permitted by § 121.54 (b), the order shall be issued at the end of the 60-day period, and the Indian and the Board of County Commissioners for the county in which the Indian resides shall be so notified. The order shall become effective six months after the date of such notice, unless set aside by order of a county court. The timely initiation of proceedings before a county court shall stay the effective date of an order until the proceedings are concluded.

(b) If an Indian, or someone acting in his behalf, submits within the 60-day period allowed for that purpose, reasons for not issuing the order, and it is determined the reasons are not persuasive, the Indian and any person acting in his behalf shall be notified in writing that the order will be issued, notwithstanding the objections, 30 days after the date of such notification. The notification shall allow a right of appeal to the Secretary of the Interior within the 30-day period.

§ 121.56 Appeals from decision to issue order.

An appeal to the Secretary, together with supporting data, must be transmitted to the officer issuing the notice of the proposed removal of restrictions, and must be received by such officer before the expiration of the 30-day period mentioned in § 121.55 (b). Issuance of the order removing restrictions shall be withheld until the appeal is decided. If no appeal is received by the end of the 30-day period allowed for appeals, or if an appeal is dismissed, the order removing restrictions shall be issued, and the Indian and the Board of County Commissioners for the county in

which the Indian resides shall be so notified. The order shall become effective six months after the date of such notice, unless set aside by order of a county court. The timely initiation of proceedings before a county court shall stay the effective date of an order until the proceedings are concluded.

§ 121.57 Judicial review.

When an order removing restrictions is issued, copies thereof shall be delivered to the Indian, and to any person acting in his behalf, and to the Board of County Commissioners for the county in which the Indian resides, with the notification that, under the terms of the act of August 11, 1955 (69 Stat. 666), the Indian or the Board of County Commissioners has the right, within six months from the date of the notice of the order, to apply to the county court for the county in which the Indian resides for an order setting aside the order removing restrictions. The timely initiation of such proceedings shall stay the effective date of the order until the proceedings are concluded.

MORTGAGES AND DEEDS OF TRUST TO
SECURE LOANS TO INDIANS

§ 121.61 Approval of mortgages and deeds of trust.

The Commissioner of Indian Affairs or his authorized representative may approve mortgages or deeds of trust on any individually owned trust or restricted land whenever such lands under any law or treaty may be sold with the approval of the Secretary of the Interior or his duly authorized representative. The approval of such a mortgage or deed of trust terminates the trust or restricted status of the land only with respect to such mortgage or deed of trust and only for the purpose of permitting foreclosure or sale pursuant to the terms of the mortgage or deed of trust in accordance with the laws of the State or Territory in which the land is situated. [23 F.R. 6494, Aug. 22, 1958]