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Federal Register / Vol. 86, No. 155 / Monday, August 16, 2021 / Rules and Regulations
and provides its responses organized by subpart, below.

3. Comments Requesting New Definitions
A. Comments on Subpart APurpose and 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 SelfDetermination 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.

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 NonIntercourse 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 BIAs 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.

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2. Title Document One Tribe stated their agreement with the proposed rules inclusion of examples of title documents in the definition of title document as adding clarity. This Tribe also agreed with the proposed rules 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 rules definition of title document.

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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 BRecord 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
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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 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 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 150.103 to be consistent with the language in 150.302b.
Response: The final rule adds uncertified Title Status Reports for consistency with 150.302b.
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
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